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THE 



UNCONSTITUTIONALITY 



OF 



S L A Y E R Y . 



BY LYSANDER SPOONER. 



BOSTON: 
PUBLISHED BY BEL A MARSH, 

No. 14 Bromfield St. 
1860. 



y 






Entered according to Act of Congress, in the year 1845, by 

LYSANDER SPOON ER, 
In the Clerk's Office of the District Court of Massachusetts. 



CONTENTS OF PART FIRST 



PAGE 

CHAPTER I. — WHAT IS LAW? ...... .5 

•' n. — WRITTEN CONSTITUTIONS, .... 15 

« HI. — THE COLONIAL CHARTERS, .... 21 

rV. — COLONIAL STATUTES, 32 

« v. — THE DECLARATION OF INDEPENDENCE, - 36 

« VI. — THE STATE CONSTITUTIONS OF 1789. ) 

( - 39 

MEANING OF THE WORD "FREE," ) 

« VII. — THE ARTICLES OF CONFEDERATION, - 51 

«« VIII. — THE CONSTITUTION OF THE UNITED STATES, 54 

« IX. — THE INTENTIONS OF THE CONVENTION, - 114 

" X. — THE PRACTICE OF THE GOVERNMENT, - 123 

•• XL — THE UNDERSTANDING OF THE PEOPLE, - 124 

" XH.- THE STATE CONSTITUTIONS OF 1845, - 126 

*• XIII. - THE CHILDREN OF SLAVES ARE BORN FREE. 129 



THE 



UNCONSTITUTIONALITY OF SLAVERY. 



CHAPTER I. 

WHAT IS LAW? 

Before examining the language of the Constitution, in regard 
to Slavery, let us obtain a view of the principles, by virtue of 
which law arises out of those constitutions and compacts, by which 
people agree to establish government. 

To do this it is necessary to define the term laio. Populai 
opinions are very loose and indefinite, both as to the true defini- 
tion of law, and also as to the principle, by virtue of which law 
results from the compacts or contracts of mankind with each other. 

What then is Law ? That law, I mean, which, and which 
only, judicial tribunals are morally bound, under all circum- 
stances, to declare and sustain ? 

In answering this question, I shall attempt to show that law is 
an intelligible principle of right, necessarily resulting from the 
nature of man ; and not an arbitrary rule, that can be established 
by mere Avill, numbers or power. 

To determine whether this proposition be correct, we must look 
at the general signification of the term law. 

The true and general meaning of it, is that natural, permanent, 
unalterable principle, which governs any particular thing or class 
of things. The principle is strictly a natural one ; and the term 
applies to every natural prmciple, whether mental, moral or phys- 
ical. Thus we speak of the laws of mind ; meaning thereby those 
natural, universal and necessary principles, according to which 
mind acts, or by which it is governed. We speak too of the moral 
law; which is merely an universal principle of moral obligation, 
that arises out of the nature of men. and their relations to each 
1* 



6 THE TTNCONSTITUTIONALITY OF SLAVERY. 

Other, and to other things — and is consequently as unalterable as 
the nature of men. And it is solely because it is unalterable in 
its nature, and universal in its application, that it is denominated 
law. If it were changeable, partial or arbitrary, it Would be no 
law. Thus we speak of physical laws ; of the laws, for instance, 
that govern the solar system ; of the laws of motion, the laws of 
gravitation, the laws of light, &c., &c. — Also the laws that govern 
the vegetable and animal kingdoms, Sn all their various depart- 
ments : among which laws may be named, for example, the one 
that like produces like. Unless the operation of this principle 
were uniform, universal and necessary, it would be no law. 

Law, then, applied to any object or thing whatever, signifies a 
natural^ unalterable, universal principle, governing such object or 
thing. Any rule, not existing in the nature of things, or that is 
not permanent, universal and inflexible in its application, is no 
law, according to any correct definition of the term law. 

What, then, is that natur<il, universal, impartial and inflexible 
principle, which, under all circumstances, necessarily fixes, deter- 
mines, defines and governs the civil rights of men ? Those right* 
of person, property, &c., which one human being has, as against 
other human beings ? 

I shall define it to be simply the rule, principle, obligation or 
requirement of natural justice. 

This rule, principle, obligation or requirement of natural justice, 
has its origin in the natural rights of individuals, results necessa- 
rily from them, keeps them ever in view as its end and purpose, 
secures their enjoyment, and forbids their violation. It also 
secures all those acquisitions of property, privilege and claim, 
which men have a natural right to make by labor and contract. 

Such is the true meaning of the term law, as applied to the 
civil rights of men. And I doubt if any other definhion of law 
can be given, that will prove correct in every, or necessarily in 
any possible case. The very idea of law originates in men's 
natural rights. There is no other standard, than natural rights, 
by which civil law can be measured. Law has always been the 
name of that rule or principle of justice, which protects those rights. 
Thus we speak of natural law. Natural law, in fact, constitutes 
the great body of the law that is professedly administered by 
judicial tribunals: and it always necessarily must be — for it is 
impossible to anticipate a thousandth part of the cases that arise, 
so as to enact a special law for them. Wherever the cases have 



WHAT IS LAW ? 7 

not been thus anticipated, the natural law prevails. We thus 
politically and judicially recognize the principle of law as originat- 
ing in the nature and rights of men. By recognizing it as origin- 
ating in the nature of men, we recognize it as a principle, that is 
necessarily as immutable, and as indestructible as the nature of 
man. We also, in the same way, recognize the impartiality and 
universality of its application. 

If, then, law be a natural principle — one necessarily resulting 
f'"om the very nature of man, and capable of being destroyed or 
changed only by destroying or changing the nature of man — it 
necessarily follows that it must be of higher and more inflexible 
obligation than any other rule of conduct, which the arbitrary will 
of any man, or combination of men, may attempt to establish. 
Certainly no rule can be of such high, universal and inflexible 
obligation, as that, which, if observed, secures the rights, the safety 
and liberty of all. 

Natural law, then, is the paramount law. And, being the para- 
mount law, it is necessarily the only law : for, being applicable to 
every possible case that can arise touching the rights of men, any 
other principle or rule, that should arbitrarily be applied to those 
rights, would necessarily conflict with it. And, as a merely arbi- 
trary, partial and temporary rule must, of necessity, be of less obli- 
gation than a natural, permanent,, equal and universal one, the 
arbitrary one becomes, in reality, of no obligation at all, Avhen the 
tvvo come in collision. Consequently there is, and can be, correctly 
speaking, 710 law but natural lata. There is no other principle or 
rule, applicable to the rights of men, that is obligatory in compari- 
son with this, in any case whatever. And this natural law is no 
other than that rule of natural justice, which results either directly 
from men's natural rights, or from such acquisitions as they have 
a natural right to make, or from such contracts as they have a 
natural right to enter into. 

Natural law recognizes the validity of all contracts which men 
have a natural right to make, and which justice requires to be 
fulfilled : such, for example, as contracts that render equivalent for 
equivalent, and are at the same time consistent with morality, the 
natural rights of men, and those rights of property, privilege, &;c., 
which men have a natural right to acquire by labor and contract. 

Natural law, therefore, inasmuch as it recognizes the natural 
right of men to enter into obligatory contracts, permits the forma- 
tion of government, founded on contract, as all our governments 



8 THE TTNCONSTITITTIONALITY OF SLAVERY. 

profess to be. But in order that the contract of government may 
be valid and lawful, it must purport to authorize nothing incon- 
sistent with natural justice, and men's natural rights. It cannot 
^awfully authorize government to destroy or take from men their 
natural rights : for natural rights are inalienable, and can no more 
be surrendered to government — which is but an association oi 
individuals — than to a single individual. They are a necessary 
attribute of man's nature; and he can no more part with them — 
to government or anybody else — than with his nature itself. 
But the contract of government may lawfully authorize the adop- 
tion of means — not inconsistent with natural justice — for the 
better protection of men's natural rights. And this is the legiti- 
mate and true object of government. And rules and statutes, not 
inconsistent with natural justice and men's natural rights, if 
enacted by such government, are binding, on the ground of con- 
tract, upon those who are parties to the contract, which creates the 
government, and authorizes it to pass rules and statutes to carry 
out its objects. "* 

But natural law tries the contract of government, and declares it 
lawful or unlawful, obligatory or invalid, by the same rules by 
which it tries all other contracts between man and man. A con- 
tract for the establishment of government, being nothmg but a 
voluntary contract between individuals for their mutual benefit, 
differs, in nothing that is essential to its validity from any other 
contract between man and man, or between nation and nation. 
If two mdividuals enter into a contract to commit trespass, theft, 
robbery or murder upon a third, the contract is unlawful and void, 
simply because it is a contract to violate natural justice, or men's 
natural rights. If two nations enter into a treaty, that they will 
unite in plundering, enslaving or destroying a third, the treaty is 
unlawful, void and of no obligation, simply because it is contrary 

* It is obvious that legislation can have, in this country, no hig'her or other author- 
ity, than that which results from natural law, and the obligation of contracts ; for 
our constitutions are but contracts, and the legislation they authorize can of course 
have no other or higher authority than the constitutions themselves. The stream 
cannot rise higher than the fountain. The idea, therefore, of any inherent author 
ity or sovereignty in our governments, as governments, or of any inherent right 
in the majority to restrain individuals, by arbitrary enactments, from the exercise 
of any of their natural rights, is as sheer an imposture as the idea of the divine 
right of kings to reign, or any other of the doctrines on which arbitrary gcvernments 
have been founded. And the idea of any necessary or inherent authority in legis- 
lation, as such, is, of course, equally an imposture. If legislation be consistent 
with natural justice, and the natural or intrinsic obligation of the contract of govern- 
ment, it is obligatory : if not, not. 



WHAT IS LAW ? 9 

to justice and men's natural rights. On the same principle, if the 
majority, however large, of the people of a countr\', enter mto a 
contract of government, called a constitution, by which they agree 
to aid, abet or accomplish any kind of injustice, or to destroy or 
invade the natural rights of any person or persons whatsoever; 
whether such persons be parties to the compact or not, this contract 
of government is unlawful and void — and for the same reason that 
a treaty between two nations for a similar purpose, or a contract of 
the same nature between two individuals, is unlawful and void. 
Such a contract of government has no moral sanction. It confers 
no rightful authority upon those appointed to administer it. It 
confers no legal or moral rights, and imposes no legal or moral 
obligation upon the people who are parties to it. The only duties, 
which any one can owe to it, or to the government established 
under color of its authority, are disobedience, resistance, destruc- 
tion. 

Judicial tribunals, sitting under the authority of this unlawful 
contract or constitution, are bound, equally with other men, to 
declare it, and all unjust enactments passed by the government in 
pursuance of it, unlawful and void. These judicial tribunals can- 
not, by accepting office under a government, rid themselves of that 
paramount obligation, that all men are under, to declare, if they 
declare anything, that justice is law ; that government can have 
no lawful powers, except those with which it has been invested by- 
lawful contract ; and that an unlawful contract for the establish- 
ment of government, is as unlawful and void as any other con- 
tract to do injustice. 

No oaths, which judicial or other officers may take, to carry out 
and support an unlawful contract or constitution of government, 
are of any moral obligation. It is immoral to take such oaths, and 
if is criminal to fulfil them. They are, both in morals and law, 
like the oaths which individual pirates, thieves and bandits give to 
their confederates, as an assurance of their fidelity to the purposes 
for which they are associated. No man has any moral right to 
assume such oaths ; they impose no obligation upon those who do 
assume them ; they afford no moral justification for official acts, in 
themselves unjust, done in pursuance of them. 

If these doctrines are correct, then those contracts of govern- 
ment, state and national, which we call constitutions, are void, and 
unlawful, so far as they purport to authorize, (if any of ihem do 
autliorize,) anything in violation of natural justice, or the natural 



10 THE UNCONSTITUTIONALITY OF SLAVERY. 

rights of any man or class of men whatsoever. And all judicial 
tribunals are bound, by the highest obligations that can rest upon 
them, to declare that these contracts, in all such particulars, (if 
any such there be,) are void, and not law^. And all agents, legis- 
lative, executive, judicial and popular, who voluntarily lend their 
aid to the execution of any of the unlawful purposes of the gov- 
ernment, are as much personally guilty, according to all the moral 
and legal principles, by which crime, in its essential character, is 
measured, as though they performed the same acts independently, 
and of their own volition. 

Such is the true character and definition of law. Yet, instead of 
being allowed to signify, as it in reality does, that natural, uni- 
versal and inflexible principle, which has its origin in the nature 
of man, keeps pace everywhere with the rights of man, as their 
shield and protector, binds alike governments and men, weighs by 
the same standard the acts of communities and individuals, and is 
paramount in its obligation to any other requirement which can 
be imposed upon men — instead, I say, of the term law being 
allowed to signify, as it really does, this immutable and overrul- 
ing principle of natural justice, it has come to be applied to mere 
arbitrary rules of conduct, prescribed by individuals, or combina- 
tions of individuals, self-styled governments, who have no other 
title to the prerogative of establishing such rules, than is given 
them by the possession or command of sufficient physical power 
to coerce submission to them. 

The injustice of these rules, however palpable and atrocious it 
may be, has not deterred their authors from dignifying them with 
the name of law. And, what is much more to be deplored, such 
has been the superstition of the people, and such their blind vener- 
ation for physical power, that this injustice has not opened their 
eyes to the distinction between law and force, between the sacred 
requirements of natural justice, and the criminal exactions of unre- 
strained selfishness and power. They have thus not only suffered 
the name of law to be stolen, and applied to crime as a cloak to 
conceal its true nature, but they have rendered homage and obe- 
dience to crime, under the name of law, until the very name of 
law, instead of signifying, in their minds, an immutable principle 
of right, has come to signify little more than an arbitrary com- 
mand of power, without reference to its justice or its injustice, its 
innocence or its criminality. And now, commands the most crim- 
inal, if christened with the name of law, obtain nearly as ready an 



WHAT IS LAW? 11- 

obedien-:a, oftentimes a more ready obedience, than law and jus- 
tice itself. This superstition, on the part of the people, which has 
thus allowed force and crime to usurp the name and occupy the 
throne of justice and law, is hardly paralleled in its grossness, 
even by that superstition, which, in darker ages of the world, has 
allowed falsehood, absurdity and cruelty to usurp the name and 
the throne of religion. 

But I am aware that other definitions of law, widely different 
from that I have given, have been attempted — definitions too, 
which practically obtain, to a great extent, in our judicial tribunals, 
and in all the departments of government. But these other defini- 
tions are nevertheless, all, in themselves, uncertain, indefinite, 
mutable ; and therefore incapable of being standards, by a refer- 
ence to which the question of law, or no law, can be determined. 
Law, as defined by them, is capricious, arbitrary, unstable ; is 
based upon no fixed principle ; results from no established fact ; is 
susceptible of only a limited, partial and arbitrary application ; 
possesses no intrinsic authority ; does not, in itself, recognize any 
moral principle ; does not necessarily confer upon, or even 
acknowledge in individuals, any moral or civil rights ; or impose 
upon them any moral obligation. 

For example. One of these definitions — one that probably em- 
braces the essence of all the rest — is this: 

That " law is a rule of civil conduct, prescribed by the supreme 
power of a state, commanding what its subjects are to do, and 
prohibiting what they are to forbear," — Noah Webster. 

In this definition, hardly anything, that is essential to the idea 
of law, is made certain. Let us see. It says that, 

" Law is a rule of civil conduct, prescribed by the supreme 
power of a state." 

What is the " supreme power," that is here spoken of, as the 
fountain of law ? Is it the supreme physical power ? Or the 
largest concentration of physical power, whether it exist in one man 
or in a combination of men ? Such is undoubtedly its meaning. 
And if such be its meaning, then the law is uncertain ; for it is 
oftentimes unceitain where, or in what man, or body of men, in a 
state, the greatest amount of physical power is concentrated. 
Whenever a state should be divided into factions, no one having 
the supremacy of all the rest, law would not merely be inefficient, 
but the very principle of law itself would be actually extinguished. 
And men would have no " rule of civil conduct." This result 
alone is sufficient to condemn this definition. 



12 THE UNCONSTITTTTIONALITY OF SLAVERY. 

Again. If physical power be the fountain of law, then law ancE 
force are synonymous terms. Or, perhaps, rather, law would be 
the result of a combination of will and force ; of will, united with 
a physical power sufficient to compel obedience to it, but not 
necessarily having any moral character whatever. 

Are we prepared to admit the principle, that there is no real 
distinction between law and force? If not, we must reject this 
definition. 

It is true that law may, in many cases, depend upon force as 
the means of its practical efficiency. But are law and force there- 
fore identical in their essence ? 

According to this definition, too, a conmiand to do injustice, is 
as much law, as a command to do justice. All that is necessarj', 
according to this definition, to make the command a law, is that it 
issue from a will that is supported by physical force sufficient to 
coerce obedience. 

Agani. If mere will and power are sufficient, of themselves, to 
establish law — legitimate law — such law as judicial tribunals are 
morally bound, or even have a moral right to enforce — then it fol- 
lows that wherever will and power are united, and continue united 
until they are successful in the accomplishment of any particular 
object, to which they are directed, they constitute the only legiti- 
mate law of that case, and judicial tribunals can take cognizance 
of no other. 

And it makes no difference, on this principle, whether this com- 
bination of will and power be found in a single individual, or in a 
community of an hundred millions of individuals. — The numbers 
concerned do not alter the rule — otherwise law would be the result 
of numbers, instead of " supreme power." It is therefore suffi- 
cient to comply with this definition, that the power be equal to the 
accomplishment of the object. And the will and power of one 
man are therefore as competent to make the law relative to any 
acts which he is able to execute, as the will and power of millions 
of men are to make the law relative to any acts which they are 
able to accomplish. 

On this principle, then — that mere will and power are compe- 
tent to establish the law that is to govern an act, without reference 
to the justice or injustice of the act itself, the will and power of 
any single individual to commit theft, would be sufficient to make 
theft lawful, as lawful as is any other act of injustice, which the 
will and power of communities, or large bodies of men, may be 



WHAT IS LAW? 13 

united to accomplish And judicial tribunals are as much bound 
to recognize, as lawful, any act of injustice or crime, which the 
will and power of a single individual may have succeeded in 
accomplishing, as they are to recognize as lawful any act of in- 
justice, which large and organized bodies of men, self-styled 
governments, may accdmplisu. 

But, perhaps it will be said that the soundness of this definition 
depends upon the use of the word " state " — and that it therefore 
makes a distinction between " the supreme power of a state" 
over a particular act, and the power of an individual over the same 
act. 

But this addition of the word " state," in reality leaves the 
definition just where it would have been without it. For what is 
■" a state ? " It is just what, and only what, the will and power of 
individuals may arbitrarily establish. 

There is nolhrngjixe^ in the nature, character or boundaries of 
** a state." Will and power may alter them at pleasure. The 
will and power of Nicholas, and that will and power which he 
has concentrated around, or rather within himself, establishes all 
Russia, both in Europe and Asia, as " a state." By the same 
rule, the will and power of the owner of an acre of ground, may 
establish that acre as a state, and make his will and power, for the 
time being, supreme and lawful within it. 

The will and power, also, that established " a state " yesterday, 
may be overcome to-day by an adverse will and power, that shall 
abolish that state, and incorporate it into another, over which this 
latter will and power shall to-day be "supreme." And this latter 
will and power may also to-morrow be overcome by still another 
will and power mightier than they. 

" A state," then, is nothing fixed, permanent or certain in its 
nature. It is simply the boundaries, within which any single 
combination or concentration of will and power are efhcient, or 
irresistible, /or the time being. 

This is the only true definition that can be given of " a state." 
It is merely an arbitrary name given to the territorial limits of 
power. And if such be its true character, ihen it would follow, 
that the boundaries, though but two feet square, within which the 
will and power of a single individual are, for the time beings 
supreme, or irresistible, are, for all legal purposes, "a stale" — 
and his will and power constitute, for the time being, the .aw 
wit!iin those limits ; and his acts are, therefore, for the time being, 
2 



14 THE UNCONSTITUTIONALITY OF SLAVERY. 

as necessarily lawful, without respect to their intrinsic justice or 
injustice, as are the acts of larger bodies of men, within those 
limits where their will and power are supreme and irresistible. 

If, then, law really be what this definition would make it, merely 
" a rule of civil conduct prescribed by the supreme pow^r of a 
state " — it would follow, as a necessary consequence, that law is 
synonymous merely with will and force, wherever they are coip 
bined and in successful operation, for the present moment. 

Under this definition, law offers no permanent guaranty for the; 
safety, liberty, rights or happiness of any one. It licenses all 
possible crime, violence and wrong, both by governments and in- 
dividuals. The definition was obviously invented by, and is suited 
merely to gloss over the purposes of, arbitrary power. We are 
therefore compelled to reject it, and to seek another, that shall 
make law less capricious, less uncertain, less arbitrary, more just, 
more safe to the rights of all, more permanent. And if we seek 
another, where shall we find it, unless we adopt the one first given, 
viz., that lato is the rule, principle, obligation or requirement of 
natural jtcstice ? 

Adopt this definition, and law becomes simple, intelligible, 
scientific; always consistent with itself; always harmonizing with 
morals, reason and truth. Reject this definition, and law is no 
longer a science : but a chaos of crude, conflicting and arbitrary 
edicts, unknown perchance to either morals, justice, reason or 
truth, and fleeting and capricious as the impulses of will, interest 
and power. 

If, then, law really be nothing other than the rule, principle 
obligation or requirement of natural justice, it follows that govern- 
ment can have no powers except such as individuals may rightfully 
delegate to it : that no law, inconsistent with men's natural rights, 
can arise out of any contract or compact of government : that con- 
stitutional law, under any form of government, consists only of 
those principles of the written constitution, that are ctr?tsistent unih 
natural laxo, and man's natural rights ; and that any other princi- 
ples, that may be expressed by the letter of any constitution, are 
void and not law, *id all judicial tribunals are bound to declare 
them so. 

Though this doctrine may make sad havoc with constitutions 
and statute books, it is nevertheless law. It fixes and determines 
the real rights of all men ; and its demands are as imperious as 
any that can exist under the name of law. 



WRITTEN CONSTITUTIONS. 15 

It is possible, perhaps, that this doctrine would spare enough of 
our existing constitutions, to save our governments from the 
necessity of a new organization. But whatever else it might 
spare, one thing it would not spare. It would spare no vestige of 
that system of human slavery, which now claims to exist by 
authority of law.* 



CHAPTER II. 

WRITTEN CONSTITUTIONS. 

Taking it for granted that it has now been sho^vn that no ruie 
of civil conduct, that is inconsistent with the natural rights of men, 
can be rightfully established by government, or consequently be 
made obligatory as law, either upon the people, or upon judicial 
tribunals — let us now proceed to test the legality of slavery by 
those written constitutions of government, which judicial tribunals 
actually recognize as authoritative. 

In making this examination, however, I shall not insist upon 
the principle of the preceding chapter, that there can be no law 

* The mass of men are so much accustomed to rea:ard law as an arbitrary com- 
mand of those who administer political power, that the idea of its being a natural, 
fixed, and immutable principle, may perhaps want some other support than that of 
the reasoning already given, to commend it to their adoption. I therefore give them 
the following corroborations from sources of the highest authority. 

"Jurisprudence is the science of what is just and unjust." — Justinian. 

" The primary and principal objects of the law are rights and wrongs." — Black- 
stone. 

" Justice is the constant and perpetual disposition to render to every man his 
due." — Justinian. 

" The precepts of the law are to live honestly ; to hurt no one ; to give to every 
one his due." — Justinian <f' Blackstone. 

"Law. The rule and bond of men's actions ; or it is a rule for the well govern- 
ing of civil society, to give to every man that which doth belong to him." — Jacob's 
ZjUtD Dictionary. 

" Laws are arbitrary or positive, and natural ; the last of which are essentially 
just and good, and bind everywhere, and in all places where they are observed. * * 
* * Those which are natural laws, are from God ; but those which are arbitrary, 
are properly human and positive institutions." — Selden an Fortescue, C. 17, also 
Jacob's LaiD Dictionary. 

"The law of nature is that which God, at man's creation, infused into him, for his 
preservation and direction ; and this is an eternal law, and may not be changed." — 2 
Shep. Abr. 356, also Jac. Laic Diet. 



16 THE UNCONSTITUTIONALITY OF SLAVERY 

contrary to natural right ; but shall admit, for the sake of the argu- 
ment, that there may be such laws. I shall only claim that in the 
interpretation of all statutes and constitutions, the ordinary legal 

" All laws derive their force from the law of nature ; and those which do not, are 
accounted as no laws." — Fortescue, Jac. Law Diet. 

" No law will make a construction to do wrong ; and there are some things which 
the law favors, and some it dislikes ; it favoreth those things that come from the 
order of nature." — ! Inst. 183, 197. — Jac. Law Diet. 

" Of law no less can be acknowledged, than that her seat is the bosom of God, her 
voice the harmony of the world. All things in heaven and earth do her homage ; 
the least as feeling her care, and the greatest as not exempted from her power." — 
Hooker. 

Blackstone speaks of law as " A science, which distinguishes the criterions of 
right and wrong ; which teaches to establish the one, and prevent, punish or redress 
the other ; which employs in its theory the noblest faculties of the soul, and exerts 
in its practice the cardinal virtues of the heart ; a science, which is universal in its 
use and extent, accommodated to each individual, yet comprehending the whole 
community." — Blaekstone's Lecture on the Studij of the Law. 

" This law of nature being coeval with mankind, and dictated by God himself, is 
of course superior in obligation to any other. It is binding over all the glolie, in all 
countries, and at all times : no human laws are of any validity, if contrarj- to this ; 
and such of them as are valid, derive all their force, and all their authority medi- 
ately or immediately, from this original." — Blackstone, Vol. \,p. 41. 

Mr. Christian, one of Blackstone's editors, in a note to the above passage, says : 

" Lord Chief Justice Hobart has also advanced, that even an act of Parliament 
made against natural justice, as to make a man judge in his own cause, is void in 
itself, for Jura natura sunt immutabilia, and they are leges legum" — (the laws of 
nature are immutable — they are the laws of laws.) — Hob. 87. 

Mr. Christian then adds : 

" With deference to these high authorities, (Blackstone and Hobart,) I should 
conceive that in no case whatever can a judge oppose his own opinion and authority 
lo the clear will and declaration of the legislature. His province is to interpret and 
obey the mandates of the supreme power of the state. And if an act of Parliament, 
if we could suppose such a case, should, like the edict of Herod, command all the 
ehildren under a certain age to be slain, the judge ought to resign his office rather 
than be auxiliary to its execution ; but it could only be declared void by the same 
legislative power by which it was ordained. If the judicial power were competent 
to decide that an act of parliament was void because it was contrary to natural jus- 
lice, upon an appeal to the House of Lords this inconsistency would be the conse- 
quence, that as judges they must declare void, what as legislators they had enacted 
should be valid. 

" The learned judge himself (Blackstone) declares in p. 91, if the Parliament will 
positively enact a thing lo be done which is unreasonable, 1 know of no power in the 
ordinary forms of the constitution, that is vested with authority to control it." 

It will be seen from this note of Mr. Christian, that he concurs in the opinion that 
an enactment contrary to natural justice is intrinsically void, and not law ; and that 
the principal, if not the only difficulty, which he sees in carrying out that doctrine, 
is one that is peculiar to the British constitution, and does not exist in the Uniteo 
States. That difficulty is, the " inconsistency" there would be, if the House of 
Lords, (which is the highest law court in England, and at the same time one branch 
of the legislature,) were to declare, in their capacity as judges, that an act was void, 
which, as legislators, they had declared should be valid. And this is probably the 



WRITTEN CONSTITTTTIONS. 17 

rules of interpretation be observed. The most important of these 
rules, and the one to which it ^vill be necessary constantly to refer, 
IS the one that all language must be construed " strictly " in favor 

reason why Blackstone admitted that he knew of no power in the ordinary forms of 
the (British) constitution, that was vested with authority to control an act of Parlia- 
ment that was unreasonable, (against natural justice.) But in the United States, 
where the judicial and legislative powers are vested in different bodies, and where 
they are so vested for the very purpose of having the former act as a check upon 
the latter, no such inconsistency would occur. 

The constitutions that have been established in the United States, and the discus- 
sions had on the formation of them, all attest the importance which our ancestors 
attached to a separation of the judicial, from the executive and legislative depart- 
ments of the government. And j'et the benefits, which they had promised to liberty 
aud justice from this separation, have in slight only, if any degree, been realized. — 
Although the legislation of the countrj' generally has exhibited little less than an 
entire recklessness both of natural justice and constitutional authority, the records 
of the judiciary nevertheless furnish hardly an instance where an act of a legislature 
has, for either of these reasons, been declared void by its co-ordinate judicial de- 
partment. There have been cases, few and far between, in which the United 
States courts have declared acts of state legislatures unconstitutional. But the 
history of the co-ordinate departments of the same governments has been, that the 
judicial sanction followed the legislative act with nearly the same unerring certainty, 
that the shadow follows the substance. Judicial decisions have consequently had 
the same effects in restraining the actions of legislatures, that shadows have in re- 
straining the motions of bodies. 

Why this uniform concurrence of the judiciary with the legislature? It is be- 
cause the separation between them is nominal, not real. The judiciary receive their 
offices and salaries at the hands of the executive and the legislature, and are amena- 
ble only to the legislature for their official character. They are made entirely inde- 
pendent of the people at large, (whose highest interests are liberty and justice,) and 
entirely dependent upon those who have too many interests inconsistent with liberty 
and justice. Could a real and entire separation of the judiciary from the other de- 
partments take place, we might then hope that their decisions would, in some 
measure, restrain the usurpations of the legislature, and promote progress in the 
science of law and of government. 

Whether any of our present judges would, (as Mr. Christian suggests they ought,) 
"resign their offices" rather than be auxiliary to the execution of an act of legis- 
lation, that, like the edict of Herod, should require all the children under a certain 
age to be slain, we cannot certainly know. But this we do know — that our judges 
have hitherto manifested no intention of resigning their offices to avoid declaring it 
to be law, that " children of two years old and under," may be wrested forever 
from that parental protection which is their birthright, and subjected for life to out- 
rages which all civilized men must regard as wo/se than death. 

To proceed with our authorities : — 

" Those human laws that annex a punishment to murder, do not at all increase its 
moral guilt, or superadd any fresh obligation in the forum of conscience to abstain 
from it? perpetration. Nay, if any human law should allow or enjoin us to commit 
it, we are bound to transgress that human law, or else we must offend both the natural 
and the divine." — Blackstone, Vol. 1 , p. 42, 43. 

" The law of nations depends entirely upon the rules of natural law, or upon 
mutual compacts, treaties, leagues and agreements between these several commuii- 
ties ; in the construction also of which compacts, we have no other rule to resort ta 

2# 



18 THE -UNCONSTITUTIONALITY OF SLAVERY. 

of natural right. The rule is laid down by the Si preme Court of 
the United States in these words, to wit : 

" Where rights are infringed, where fundamental principles are 

but the law of nature : (that) being the only one to which all the communities are 
equally subject." — Blackstone, Vol. l,p. 43. 

" Those rights then which God and nature have established, and are therefore 
called natural rights, such as are life and liberty, need not the aid of human laws to 
be more effectually invested in every man than they are ; neither do they receive 
any additional strength when declared by the municipal lasvs to be inviolable. On 
the contrary, no human legislature has power to abridge or destroy them, unless the 
owner shall himself commit some act that amounts to a forfeiture." — Blackstone, 
Vol. l,p. 54. 

" By the absolute rights of individuals, we mean those which are so in their 
primary and strictest sense ; such as would belong to their persons merely in a state 
of nature, and which every man is entitled to enjoy, whether out of society, or in 
tl." — Blackstone, Vol. I, p. 123. 

" The principal aim of society (government) is to protect individuals in the enjoy- 
ment of those absolute rights, which were vested in them by the immutable laws of 
nature ; but which could not be preserved in peace without that mutual assistance 
and intercourse, which is gained by the institution of friendly and social communi- 
ties. Hence it follows, that the first and primary end of human laws is to maintam 
and regulate these absolute rights of individuals. Such rights as are social and 
relative result from, and are posterior to, the formation of states and societies ; so 
that to maintain and regulate these, is clearly a subsequent consideration. And 
therefore the principal view of human law is, or ought always to be, to explain, 
protect, and enforce such rights as are absolute ; which, in themselves, are few and 
simple : and then such rights as are relative, which, arising from a variety of connex- 
ions, will be far more numerous and more complicated. These will take up a greater 
space in any code of laws, and hence may appear to be more attended to, though in 
reality they are not, than the rights of the fbrmorkind." — Blackstone, Vol. I, p. 124. 
" The absolute rights of man, considered as a free agent, endowed with discern 
ment to know good from evil, and with power of choosing those measures which 
appear to him most desirable, are usually summed up in one general appellation, and 
denominated the natural liberty of mankind. This natural liberty consists properly 
in a pov;er of acting as one thinks tit, without any restraint or control, unless by the 
law of nature, being a right inherent in us by birth, and one of the gifts of God to 
man at his creation, when he endowed him with the faculty of free will." — Black- 
stone, Vol. 1, p. 125. 

" Moral or natural liberty, (in the words of Burlamaqui, ch. 3, s. 15,) is the right, 
•which nature gives to all mankind of disposing of their persons and property after 
the manner they judge most consonant to their happiness, on condition of their 
acting within the limits of the law of nature, and that they do not any way abuse it 
to the prejudice of any other men." — Christian's note, Blackstone, Vol. 1, p. 126. 
" The law of Nature is antecedent and paramount to all human governments. 
* * * Every individual of the human race comes into the world with rights, which, 
if the whole aggregate of human power were concentrated in one arm, it could not 
take away. * * * Tde Declaration of Independence recognizes no despotism, 
monarchical, aristocratic, or democratic. It declares that individual man is pos- 
sessed of rights of which no government can deprive him." — John Quincy Adams. 
All the foregoing definitions of law, rights and natural liberty, although some of 
them are expressed in somewhat vague anil indefinite terms, nevertheless recognize 
he primary id -a. that law is a fixed jirineiple, resulting from men's nauira! rights ; 



WRITTEN CONSTITL'TIONS. 



19 



overthrown, where the general system of the laws is departed from, 
the legislative intention must be expressed with irresistible clear- 
ness., to induce a court of justice to suppose a design to effect such 
objects."^ 

and that therefore the acknowledgment and security of the natural rights ol in- 
dividuals constitute the whole basis of law as a science, and a si?ie qua non of gov- 
ernment as a legitimate institution. 

And yet writers generally, who acknowledge the true theory of government and 
law, will nevertheless, when discussing matters of legislation, violate continually 
the fundamental principles with which they set out. On some pretext of promoting 
a great public good, the violation of individual rights will be justified in particular 
cases ; and the guardian .principle being once broken down, nothing can then slay 
the irruption of the whole horde of pretexts for doing injustice ; and government 
and legislation thenceforth become contests between factions for power and plunder, 
instead of instruments for the preservation of liberty and justice equally to all. 

The current doctrine that private rights must yield to the public good, amounts, 
in reality, to nothing more nor less than this, that an individual or the minority must 
consent to have less than their rights, in order that other individuals, or the majority, 
may have more than their rights. On this principle no honest government could 
ever be formed by voluntary contract, (as our governments purport to be ;) because 
no man of common sense would consent to be one of the plundered minority, and 
no honest man could wish to be one of the plundering majority. 

The apology, that is constantly put forth for the injustice of government, viz., that 
a man must consent to give up some of his rights, in order to have his other rights 
protected — involves a palpable absurdity, both legally and politically. It is an 
absurdity in law, because it says that the law must be violated in some cases, in 
order that it may be maintained in others. It is an absurdity politically, because a 
man's giving up one of his rights has no tendency whatever to promote the protec- 
vion of others. On the contrary, it only renders him less capable of defending 
himself, and consequently makes the task of his protection more burdensome to the 
government. At the same time it places him in the situation of one who has con- 
ceded a part of his rights, and thus cheapened the character of all his rights in the 
eyes of those of whom he asks assistance. (There would be as much reason in 
saying that a man must consent to have one of his hands tied behind him, in order 
that his friends might protect the rest of his body against an enemy, as 'there is iu 
saying that a man must give up some of his rights in order that government may 
protect the remainder. Let a man have the use of both of his hands, and the enjoy- 
ment of all his rights, and he will then be more competent to his own defence ; his 
rights will be more respected by those who might otherv/ise be disposed to invade 
them ; he will want less the assistance and protection of others ; and we shall need 
much less government than we now have. 

If individuals choose to form an association or government, for the mutual pro- 
tection of each other's rights, why bargain for the protection of an indefiniie jjortion 
of them, at the price of giving to the association itself liberty to violate the equally 
indefinite remainder? By such a contract, a man really surrenders everything, and 
secures nothing. Such a contract of government would be a burlesque on the 
wisdom of asses. Such a contract never was, nor ever will be volurxlarity formed. 
Yet all our governments act on that principle ; and so far as they act upon it, they 
are as essentially usurping and tyrannical as any governments can be. If a man 
pay his proportion of the aggregate cost of protecting aJ' the rights of each of tl»e 

* United Slates vs. Fisher, 2 Cranch, 390. 



20 THE UNCONSTITUTIONALITY OF SLAVERY. 

It will probably appear from this examination of the v/ritten con- 
stitutions, that slavery neither has, nor ever had any constitutional 
existence in this country ; that it has always been a mere abuse, 
sustained, in the first instance, merely by the common consent of 
the strongest party, without any law on the subject, and, in the 
second place, by a few unconstitutional enactments, made in defi- 
ance of the plainest provisions of their fundamental law. 

For the more convenient consideration of this point, we will 
divide the constitutional history of the country into three periods ; 
the first embracing the time from the first settlement of the country 
up to the Declaration of Independence ; the second embracing the 
time from the Declaration of Independence to the adoption of the 
Constitution of the United States in 17S9 ; and the third embrac- 
ing all the time since the adoption of the Constitution of the United 
States. 

Let us now consider the first period ; that is, from the settlement 
of the country, to the Declaration of Independence. 

members of the association, he thereby acquires a claim upon the association to 
have his own rights protected without diminution. 

The ultimate truth on this subject is, that man has an inalienable right to so 
much personal liberty as he will use without invading the rights of others. This 
liberty is an inherent right of his nature and his faculties. It is an inherent right 
of his nature and his faculties to develope themselves freely, and without restraint 
from other natures and faculties, that have no superior prerogatives to his own. 
And this right has only tliis limit, viz., that he do not carry the exercise of his own 
liberty so far as to restrain or infringe the equally free development of the natures 
and faculties of others. The dividing line between the equal liberties of each must 
never be transgressed by either. This principle is the foundation and essence of 
law and of civil right. And legitimate government is formed by the voluntary 
association of individuals, for the mutual protection of each of them in the enjoy- 
ment of this natural liberty, against those who may be disposed to invade it. Each 
individual being secured in the enjoyment of this liberty, must then take the re- 
sponsibility of his own happiness and well-being. If his necessities require more 
than his faculties will supply, he must depend upon the voluntary kindness of his 
fellow-men ; unless he be reduced to that extremity where the necessity of self- 
preservation over-rides all abstract rules of conduct, and makes a law for the occa- 
sion — an extremity, that would probably never occur but for some antecedent in- 
justice. 



CHAPTER III. 

THE COLONIAL CHARTERS. 

When our ancestors came to this country, they brought with 
them the common law of England, including the writ of habeas 
corpusy (the essential principle of which, as will hereafter be 
shown, is to deny the right of property in man,) the trial by jury, 
and the other great principles of liberty, which prevail in England, 
and which have made it impossible that her soil should be trod by 
the foot of a slave. 

These principles were incorporated mto all the charters, granted 
to the colonies, (if all those charters were like those I have 
examined, and I have examined nearly all of them.) — The general 
provisions of those charters, as will be seen from the extracts given 
in the note, were, that the laws of the colonies should " not be 
repugnant or contrary, but, as nearly as circumstances would 
allow, conformable to the laws, statutes and rights of our kingdom 
of England." =* 

* The second charter to Virginia (1609) grants the power of making "orders, 
ordinances, constitutions, directions and instructions," " so always as the said stat- 
utes, ordinances and proceedings, as near as conveniently may he, be agreeable to 
the laws, statutes, government and policy of this our realm of England." 

The third charier (1611 — 12) gave to the "General Court" " power and author- 
ity" to " make laws and ordinances" " so always as the same be not contrary to 
the laws and statutes of our realm of England." 

The first charier to Carolina, (including both North and South Carolina,) dated 
1663, authorized the making of laws under this proviso — " Provided nevertheless, 
that the said laws be consonant to reason, and as near as may be conveniently, 
agreeable to the laws and customs of this our kingdom of England." 

The second charter (1665) has this proviso. "Provided nevertheless, that the 
said laws be consonant to reason, and as near as may be conveniently, agreeable to 
the laws and customs of this our realm of England." 

The charter to Georgia, (1732,) an hundred years after slavery had actually ex- 
isted in Virginia, makes no mention of slavery, but requires the laws to be " rea- 
sonable and not repugnant to the laws of this our realm." " The ejid corporation 
shall and may form and prepare laws, statutes and ordinances fft aild necessary for 
and concerning the government of the said colony, and not repugnant to the laws 
and statutes of England." 

The charter to Maryland gave the power of making laws, " So, nevertheless, that 
the laws aforesaid be consonant to reason, and be not repugnant or contrary, but 
(so far as conveniently may be,) agreeable to the laws, statutes, customs, and rights 
of this our kingdom of England." 



•22 THE UNCONSTITUTIONALITY OF SLAVERY. 

Those charters were the fundamental constitutions of the 
colonies, with some immaterial exceptions, up to the time of the 
revolution ; as much so as our national and state constitutions are 
now the fundamental laws of our governments. 

The authority of these charters, during their continuance, and 
the general authority of the common law, prior to the revolution, 
have been recognized by the Supreme Court of the United States.=''= 

The charter panted to Sir Edward Plowden had this proviso. " So, nevertheless, 
that the laws aforesaid be consonant to reason, and not repugnant and contrary, 
(but as convenient as may be to the matter in question.) to the laws, statutes, customs 
and rights of our kingdoms of England and Ireland." 

In the charter to Pennsylvania, power was granted to make laws, and the people 
■were required to obey them, " Provided nevertiieless that the said laws be conso- 
nant to reason, and be not repugnant or contrary, but, as near as conveniently may 
be, agreeable to the laws, statutes, and rights of this our kingdom of England." 

I have not been able to find a copy of the charter granted to the Duke of York, 
of the territory comprising New York, New Jersey, &c. But Gordon, in his history 
of the American Revolution, (vol. 1, p. 43,) says, " The King's grant to the Duke 
of York, is plainly restrictive to the laws and government of England." 

The charter to Connecticut gave power " Also from time to time, to make, ordain 
and establish all manner of wholesome and reasonable laws, statutes, ordinances, 
directions and instructions, not contrary to the laws of this realm of England." 

The charter to the Massachusetts Bay Colony, (granted by William and Alary,) 
gave " full power and authority, from time to time, to make, ordain and establish 
all manner of wholesome and reasonable orders, laws, statutes and ordinances, 
directions and instructions, either with penalties or v.'ilhout, so as the same be not 
repugnant or contrary to the laws of this our realm of England." 

The charter to Rhode Island granted the power of making laws, " So as such 
laws, ordinances, constitutions, so made, be not contrary and repugnant unto, but 
(as near as may be) agreeable to the laws of this our realm of England, considering 
the nature and constitution of the place and people there." 

Several other charters, patents, &c., that had a temporary existence, might be 
named, that contained substantially the same provision. 
* In the case of the town of Pawlet v. Clarke and others, the court say — 
" Let us now see how far these principles were applicable to New Hampshire, at 
the time of issuing the charter to Pawlet. 

" New Hampshire was originally erected into a royal province in the thirty-first 
year of Charles II., and from thence until the revolution continued a royal province, 
under the immediate control and direction of the crown. By the first royal commis- 
sion granted in 31 Charles II., among other things, judicial powers, in all actions, 
were granted to the provincial governor and council, ' So always that the form of 
proceeding in such cases, and the judgment thereupon to be given, be as consonant 
and agreeable to the laws and statutes of this our realm of England, as the present 
slate and condition of our subjects inhabiting within the limits aforesaid (i. e. of 
the province) and the circumstances of the place will admit.' Independent, how- 
ever, of such a provision, roe take it to be a clear principle that the common laip in 
force at the emigration of our ancestors, is deemed the birthright of the colonies, 
unless so far as it is inapplicable to their situation, or repugnant to their other rights 
and privileges. A fortiori the principle applies to a royal p ovince." — (9 Cranch's 
U. Stales' Reports, 332-3.) 



THE COLONIAL CHARTERS. 23 

No one of all these charters that I have examined — and I have 
examined nearly all of them— contained the least intimation that 
slavery had, or could have any legal existence under them. 
Slavery was therefore as much unconstitutional in the colonies, as 
It was in England. 

It was decided by the Court of King's Bench in England — 
Lord Mansfield being Chief Justice — before our revolution, and 
while the English Charters were the fundamental law of the 
colonies -•'•that the principles of English liberty were so plainly 
incompatible with slavery, that even if a slaveholder, from another 
part of the. world, brought his slave into England — though only 
for a temporary purpose, and with no intention of remaining — he 
nevertheless thereby gave the slave his liberty. 

Previous to this decision, the privilege of bringing slaves into 
England, for temporary purposes, and of carrying them away, 
had long been tolerated. 

This decision was given in the year 1772. "* And for aught I 
see, it was equally obligatory in this country as in England, and 
must have freed every slave in this country, if the question had 
then been raised here. But the slave knew not his rights, and 
had no one to raise the question tor him. 

The fact, that slavery was toleiated in the colonies, is no evi- 
dence of its legality ; for slavery was tolerated, to a certain extent, 
in England, (as we have already seen,) for many years previous 
to the decision just cited — that is, the holders of slaves from 
abroad were allowed to bring their slaves into England, hold them 
during their stay there, and carry them away when they went. 
But the toleration of this practice did not make it lawful, notwith- 
■ standing all customs, not palpably and grossly contrary to the 
principles of English liberty, have great weight, in England, in 
establishing law. 

The fact, that England tolerated, (i. e. did not punish criminally,) 
the African slave-trade at that time, could not legally establish 
slavery in the colonies, any more than it did in England — 
especially in defiance of the positive requirements of the charters, 
that the colonial legislation should be consonant to reason, and not 
repugnant to the laws of England. 

Besides, the mere toleration of the slave trade could not make 
slavery itself — the right of property in man — lawful anj'Avhere ; 

* Somerset r. Stewart. — Loffi's Reports, p. I to 19, of Easier Term, irr2. In 
tie Duii.in eiluiiii. the case is not entered in the Index. 



24 T'HE TTNCONSTITITTIONALITY OF SLAVERY. 

not e ^en on board the slave ship. Toleration of a wrong is nol 
law. And especially the toleration of a wrong, (i. e. the bare 
omission to punish it criminally,) does not legalize one's claim to 
property obtained by such wrong. Even if a wrong can be legal- 
ized at all, so as to enable one to acquire rights of property by 
such wrong, it can be done only by an explicit and positive provi- 
sion. 

The English statutes, on the subject of the slave trade, (so far 
as I have seen,) never attempted to legalize the right q| property 
in man, in any of the thirteen North American colonies. It is 
doubtful whether they ever attempted to do it anywhere else. It 
is also doubtful whether Parliament had the power — or perhaps 
rather it is certain that they had not the power — to legalize it 
anywhere, if they had attempted to do so.* And the cautious 
and curious phraseology of their statutes on the subject, indicates 
plainly that they themselves either doubted their power to legalize 
it, or feared to exercise it. They have therefore chosen to con- 
nive at slavery, to insinuate, intimate, and imply their approbation 
of it, rather than risk an affirmative enactment declaring that one 
man may be the property of another. But Lord Mansfield said, 
in Somerset's case, that slavery was " so odious that nothing can 
be suffered to support it, Md positive law." No such positive law 
(I presume) was ever passed by Parliament — certainly not with 
reference to any of these thirteen colonies. 

The statute of 1788, (which I have not seen,) in regard to the 
slave trade, may perhaps have relieved those engaged in it, in 
certain cases, from their liability to be punished criminally for the 
act. But there is a great difference between a statute, that should 
merely screen a person from punishment for a crime, and one that 
should legalize his right to property acquired by the crime. 
Besides, this act was passed after the separation between America 
and England, and therefore could have done nothing towards 
.egilizing slavery in the United States, even if it had legalized it 
in the English dominions. 

The statutes of 1750, (23, George 2d, Ch. 31,) may have 
possibly authorized, by implication, (so far as Parliament could 
thus authorize,) the colonial governments, (if governments they 
could be called,) on the coast of Africa, to allow slave'y under 

* Have Parliament the constitutional prerogative of abolishing the writ oi habeas 
rorpus? the trial by jury? or the freedom of speech and the press? !f not, have 
they the prerogative of abolishing a man's right of property in his own person 1 



THE COLONIAL CHARTERS. 25 

certain circumstances, a7id withi?i the " settlements " on that coast. 
But, if it did, it was at most a grant of a merely local authority. 
It gave no authority to carry slaves from the African coast. Bu; 
even if it had purported distinctly to authorize the slave trade from 
Africa to America, and to legalize the right of property in the 
particular slaves thereafter brought from Africa to America, it 
would nevertheless have done nothing towards legalizing the 
right of property in the slaves that had been brought to, and born 
in, the colonies for an hundred and thirty years previous to the 
statute. Neither the statute, nor any right of property acquired 
under it, (in the individual slaves thereafterwards brought from 
Africa,) would therefore avail anything for the legality of slavery 
in this country now ; because the descendants of those brought 
from Africa under the act, cannot now be distinguished from the 
descendants of those who had, for the hundred and thirty years 
previous, been held in bondage without law. 

But the presumption is, that, even after this statute was passed 
in 1750, if the slave trader's right of property in the slave he was 
bringing to America, could have been brought before an English 
court for adjudication, the same principles would have been held to 
apply to it, as would have applied to a case arising within the 
island of Great Britain. And it must therefore always have been 
held by English courts, (in consistency with the decisions in 
Somerset's case,) that the slave trader had no legal ownership of 
his slave. And if the slave trader had no legal right of property 
in his slave, he could transfer no legal right of property to a pur- 
chaser in the colonies. Consequently the slavery of those that 
were brought into the colonies after the statute of 1750, was equal- 
ly illegal with that of those who had been brought in before.* 

* Mr. Bancroft, in. the third volume of his history, (pp. 413-14,) says : 

" And the statute book of England soon declared the opinion of its king and its 
Parliament, that ' the trade,' " (by which he means the slave trade, of which he is 
writing,) " ' is highly beneficial and advantageous to the kingdom and the colonies.' " 
To prove this he refers to statute of " 1695, 8 and 10 Wm. 3, ch. 26." (Should be 
1697, 8—9 and 10 VVm. 3, ch. 26.) 

Now the truth is that, although this statute may have been, and very probably 
was designed to insinuate to the slave traders the personal approbation of Parlia- 
ment to the slave trade, yet the statute itself says not a word of slaves, slavery, or 
the slave trade, except to forbid, under penalty of five hundred pounds, any governor, 
deputy-governor or judge, in the colonies or plantations in America, or any other 
person or persons, for the use cr on the behalf of such governor, deputy-governor or 
judges, to be ^ a factor or factor's agent or agents" " for the sale or disposal of any 
negroes." 

The statute does not declare, as Mr. Bancroft asserts, that " the (slave) trade is 



26 THE un:onstitutionality of slavery. 

The conclusion of the whole matter is, that until some reason 
appears against them, we are bound by the decision of the King's 

highly benelicial and advantageous to the kingdom and the colonies ;" but that 
" Ihe trade to Africa is highly beneficial and advantageous," &c. It is an inference 
of Mr. Bancroft's that " the trade to Africa" was the slave trade. Even this infer- 
ence is not justified by the words of the statute, considering them in that legal 
view, in which Mr. Bancroft's remarks purport to consider them. 

It is true that the statute assumes tliat " negroes" will be " imported" from 
Africa into " England," (where of course they were not slaves,) and into the 
"plantations and colonies in America." But it nowhere calls these "negroes" 
slaves, nor assumes that they are slaves. For aught that appears from the statute, 
they were free men and passengers, voluntary emigrants, going to " England" and 
" the plantations and colonies" as laborers, as such persons are now going to the 
British West Indies. 

The statute, although it apparently desires to insinuate or faintly imply that they 
are property, or slaves, nevertheless studiously avoids to acknowledge them as such 
distinctly, or even by any necessary implication ; for it exempts them from duties 
as merchandize, and from forfeiture for violation of revenue laws, and it also re- 
lieves the masters of vessels from any obligation to render any account of them at 
the custom houses. 

When it is considered that slavery, property in man, can be legalized, according 
to the decision of Lord Mansfield, by nothing less than positive law ; that the rights 
of property and person are the same on board an English ship, as in the island of 
Great Britain ; and that this statute implies that these " negroes" were to be " im- 
ported" into " England," as well as into the " plantations and colonies in America," 
and that it therefore no more implies that they were to be slaves in "the planta- 
tions and colonies" than in " England," where we know they could not be slaves ; 
when these things are considered, it is perfectly clear, as a legal proposition, that 
the statute legalized neither slavery in the plantations and colonies, nor the slave 
trade from Africa to America — however we may suppose it to have been designed 
to hint a personal approbation, on the part of Parliament, of the actual traffic. 

But lest I may be suspected of having either misrepresented the words of the 
statute, or placed upon them an erroneous legal construction, I give all the words 
of the statute, that make any mention of " negroes," or their importation, with so 
much of the context as will enable the reader to judge for himself of the legal im- 
port of the whole. 

The act is entitled, " An Act to settle the Trade to Africa." Sec. 1, recites as 
follows : — 

" Whereas, the Trade to Africa is highly beneficial and advantageous to this 
kingdom and to the Plantations and Colonies thereunto belonging." 

The act lontains ijoen/y-oire sections, regulating trade, duties, &c., like any other 
navigation act. " Negroes" are mentioned only in the following instances and 
connexions, to wit : 

Sec. 7. " And lie it enacted by the authority aforesaid. That from and after the 
four-and-twentieth day of June, one thousand six hundred ninety-and-eight, it shall 
and may be lawful to and for any of the subjects of his majesty's realms of England, 
as well as the said Company,"' to trade from England or any of his majesty's plan- 
tations or colonies in America to the coast of Africa, between Blanco and Cape 
Mount, answering and paying a duty of ten pounds per centum ad valorem for the 
goods and merchandises to be exported from England or any of his majesty's plan- 

* The Royiil African Company. 



THE COLONIAL CHARTERS. 27 

Bench in 1772, and the colonial charters. That decision declared 
that there was, at that time, in England, no right of property in 

tations or colonies in America to and for the coast of Africa, between Cape Blanco 
and Cape Mount, and in proportion for a greater or lesser value, and answering and 
paying a further sum and duty of ten pounds per centum ad valorem, red wood 
only excepted, which is to pay five pounds per centum ad valorem, at the place 
of importation upon all goods and merchandize (negroes excepted) imported in 
(into) England or any of his majesty's plantations or colonies in America, from the 
coast of Africa, between Cape Blanco and Cape Mount aforesaid. * * * Ana 
that all goods and merchandize, (negroes excepted,) that shall be laded or put on 
board any ship or vessel on the coast of Africa, between Cape Blanco and Cape 
Mount, and shall be imported into England or into any of his majesty's plantations 
or colonies aforesaid, shall answer and pay the duties aforesaid, and that the master 
or chief officer of every such ship or vessel that shall lade or receive any goods or 
merchandize (negroes excepted) on board of his or their ship or vessel between 
Cape Blanco and Cape Mount, shall upon making entry at any of his majesty's 
custoin houses aforesaid of the said ship or vessel, or before any goods or merchan- 
dize be landed or taken out of the said ship or vessel (negroes excepted) shall deliver 
in a manifest or particular of his cargo, and take the following oath, viz. 

" I, A. B., do swear that the manifest or particular now by me given in and signed, 
to the best of my knowledge and belief doth contain, signify and express all the 
goods, wares and merchandizes, (negroes excepted,) which were laden or put on 

board the ship called the , during her stay and continuing on 

the coast of Africa between Cape Blanco and Cape Mount, whereof I, A. B., am 
master." 

Sec. 8. "And that the owner or importer of all goods and merchandize (negroes 
excepted) which shall be brought to England or any of his majesty's plantations 
from any port of Africa between Cape Blanco and Cape Mount aforesaid shall 
make entry of all such goods and merchandize at one of his majesty's chief custom 
houses in England, or in such of his majesty's plantations where the same shall be 
imported," &c. 

Sec. 9. * * * " that all goods or merchandizes (negroes excepted) which 
shall be brought from any part of Africa, between Cape Blanco and Cape Mount 
aforesaid, which shall be unladed or landed before entry made and signed and oath 
of the true and real value thereof made and the duty paid as aforesaid, shall be for- 
feited, or the value thereof." 

Sec. 20. " And be it further enacted by the authority aforesaid, that no governor, 
or deputy-governor of any of his majesty's colonies or plantations in America, or 
Lis majesty's judges in any courts there for the time being, nor any other person or 
persons for the use or on behalf of such governor or deputy-governor or judges, 
from and after the nine-and-twentieth day of September, one thousand six hundred 
and ninety-eight, shall be a factor or factor's agent or agents for the said Company,* 
or any other person or persons for the sale or disposal of any negroes, and that 
every person offending herein shall forfeit five hundred pounds to the uses afore- 
said, to he recovered in any of his majesty's courts of record at Westminster, by 
action of debt, hill, plaint or information, wherein no essoign, protection, privilege or 
wager of law shall be allowed, nor any more than one imparlance." 

Sec. 21, "Provided that this act shall continue and be in force thirteen years, 
and from thence to the end of the next sessions of Parliament, and no longer." 

Even if this act had legalized (as in reality it did not legalize) the slave trade 
during those thirteen years, it would be impossible now to distinguish the desccnd- 

* The Royal .\frican Cnmpany. 



2S THE UNCONSTITUTIONALITY OF SLAVERY. 

man, (notwithstanding the English government had for a long 
time connived at the slave trade.) — The colonial charters required 

ants of those who were imported under it, from the descendants of those who had 
been previously, and were subsequently imported and sold into slavery without law. 
The act would therefore avail nothing towards making the existing slavery in this 
country legal. 

The ne,\t statute, of which I find any trace, passed by Parliament, with any ap- 
parent view to countenance the slave trade, was the statute of 23d George II., ch. 
31, (1-49 — 50.) 

Mr. Bancroft has committed another still more serious error in his statement of 
the words (for he professes to quote precise words) of this statute. He says, (vol. 
3, p. 414,) 

" At last, in 1749, to give the highest activity to the trade, (meaning the slave 
trade,) every obstruction to private enterprise was removed, and the ports of Africa 
were laid open to English competition, for ' ihe slave trade,' — such" (says Mr. 
Kancroft,) " are the words of the statute — ' the slave trade is very advantageous 
to Great Britain.' " 

As words are, in this case, things — and things of the highest legal consequence 
— and as this history is so extensively read and received as authority — it becomes 
important, in a legal, if not historical, point of view, to correct so important an 
error as that of the word slave in this statement. " The jcords of the statute" are 
not that " the slave trade," but that " Iho trade to and from Africa is very advan- 
tageous to Great Britain." " The trade to and from Africa" no more means, in law, 
" the slave trade," than does the trade to and from China. From aught that ap- 
pears, then, from so viuch of the preamble, " the trade to and from Africa" may 
have been entirely in other things than slaves. And it actually appears from another 
part of the statute, that trade was carried on in " gold, elephant's teeth, wax, gums 
and drugs." 

From the words immediately succeeding those quoted by Mr. Bancroft from the 
preamble to this statute, it might much more plausibly, (although even from them 
it could not be legally) inferred that th" statute legalized the slave trade, than from 
those pretended to be quoted by him. That the succeeding words may be seen, the 
title and preamble to the act are given, as follows : 

" An act for extending and improving the trade to Africa." 

" Whereas, the trade to and from Africa is very advantageous to Great Britain, 
and necessary for supplying the plantations andcolonies thereunto belonging, icith 
a s\ijjieient number of negroes at reasonable rates ; and for that purpose the said 
trade" (i. e. "the trade to and from Africa") "ought to be free and open to all his 
majesty's subjects. Therefore be it enacted," &c. 

" Negroes" were not slaves by the English law, and therefore the word " negroes," 
in this preamble, does not legally mean slaves. For aught that appears from the 
•words of the preamble, or even from any part of the statute itself these " negroes," 
with whom it is declared to be necessary that the plantations and colonies should 
be supplied, were free persons, voluntary emigrants, that were to be induced to go 
to the plantations as hired laborers, as are those who, at this day, are induced, in 
large numbers, and by the special agency of the English government, to go to the 
British West Indies. In order to facilitate this emigration, it was necessary that 
" the trade to and from Africa" should be encouraged. And the form of the pre- 
amble is such as it properly might have been, if such had been the real object of 
Parliament. Such is undoubtedly the true legal meaning of this preamble, for this 
meaning being consistent with natural right, public policy, and with the funda- 
mental principles of English law, legal rules of construction imperatively require 



THE COLONIAL CHARTERS. 29 

the legislation of the colonies to be " consonant to reason, and not 
repugnant or contrary, but conformable, or agreeable, as nearly as 

that this meaning should be ascribed to it, rather than it should be held to authorize 
anything contrary to natural right, or contrary to the fundamental principles of 
British law. 

We are obliged to put this obstruction upon this preamble, for the further reason 
that it corresponds with the enacting clauses of the statute — not one of which men- 
tions such a thing as the transportation of slaves to, or the sale of slaves in " the 
plantations and colonies." The first section of the act is in these words, to wit; 

" That it shall and may be lawful for all his majesty's subjects to trade and 
traffic to and from any port or place in Africa, between the port of Sallee in South 
Barbary, and the Cape of Good Hope, when, at such limes, and in such manner, and 
in or with such quantity of goods, wares and merchandizes, as he or they shall 
think fit, without any restraint whatsoever, save as is herein after expressed." 

Here plainly is no authority given "to trade and traffic" in anything except 
what is known either to the English law, or the law of nature, as " goods, wares, or 
merchandizes" — among which men were not known, either to the English law, or 
the law of nature. 

The second section of the act is in these words : 

" That all his majesty's sulyects, who shall trade to or from any of the ports or 
places of Africa, between Cape Blanco and the Cape of Good Hope, shall forever 
hereafter be a body corporate and politic, in name and in deed, by the name of the 
Company of Merchants Trading to Africa, and by the same name shall have per- 
petual succession, and shall hrive a common seal, and by that name shall and may 
sue, and be sued, and do any other act. matter and thing, which any other body 
corporate or politic, as such, may lawfully do." 

Neither this nor any other section of the act purports to give this " Company, " 
in its corporate capacity, any authority to buy or sell slaves, or to transport slaves 
to the plantations and colonies. 

The twenty-ninth section of the act is in these words : 

"And be it further enacted, by the authority aforesaid, that no commander or 
master of any ship trading to Africa, shall by fraud, force or violence, or by any 
other indirect practice whatsoever, take on board, or carry away from the coast of 
Africa, any negro or native of the said countr)-, or commit, or suffer to be commit- 
ted, any violence on the natives, to the prejudice of the said trade ; and that every 
person so offending shall, for every such offence, forfeit the sum of one hundred 
pounds of lawful money of Great Britain ; one moiety thereof to the use of the said 
Company hereby established, and their successors, for and towards the maintaining 
of said forts and settlements, and the other moiety to and for the use of him or 
them who shall inform or sue for the same." 

Now, although there is perhaps no good reason to doubt that the secret intention 
of Parliament in the passage of this act, was to stimulate the slave trade, and that 
there was a tacit understanding between the government and the slave dealers, that 
the slave trade should go on unharmed (in practice) by the government, and 
although it was undoubtedly understood that this penalty of one hundred pounds 
■would either not be sued for at all, or would be sued for so seldom as practically to 
interpose no obstacle to the general success of the trade, still, as no part of the 
whole statute gives any authority to this " Company of Merchants trading to 
Africa" to transport men from Africa against their will, and as this twenty-ninth 
section contains a special prohibition to individuals, under penalty, to do so, no one 
can pretend that the trade was legalized. If the penally had been but one pound, 
instead of one hundred pounds, it would have been sufficient, in law to have 
2^ 



30 THE UNCONSTITUTIONALITY OF SLAVERY, 

circumstances would alloAV, to the laws, statutes and rights of the 
realm of England." That decision, then, if correct, settled the 

rehutted the pretence that the trade was legalized. The act, on its f ice and in its 
legal meaning, is much more an act to prohibit, than to authorize the slave trade. 

The only possible legal inference from the statute so far as concerns the " sup- 
plying Ike ■planlations and colonies tcilk negroes at reasonable rates," is, that these 
negroes were free laborers, voluntary emigrants, that were to be induced to go to 
tile planlations and colonies ; and that " the trade to and from Africa " was thrown 
open in order that the facilities for the transportation of these emigrants might be 
increased. 

But although there is, in this statute, no authority given for — but, on the con- 
trary, a special prohibition upon — the transportation of the natives from Africa 
against their will, yet I freely admit that the statute contains one or two strong, 
perhaps decisive implications in favor of the fact that slavery was allowed in the 
English settlements on the coast of Africa, apparently in conformity with the cus- 
toms of the country, and with the approbation of Parliament. But that is the most 
that can be said of it. Slavery, wherever it exists, is a local institution ; and its 
toleration, or even its legality, on the coast of Africa, would do nothing towards 
making it legal in any other part of the English dominions. Nothing but positive 
and explicit legislation could transplant it into any other part of the empire. 

The implications, furnished by the act, in favor of the toleration of slavery, in the 
English settlements, on the coast of Africa, are the following : 

The third section of the act refers to another act of Parliament "divesting the 
Royal African Company of their charter, forts, castles and military stores, canoe 
men and castle-slaves ;" and section thirty-first requires that such " oflicers of his 
majesty's navy," as shall be appointed for the purpose, " shall inspect and examine 
the state and condition of the forts and settlements on the coast of Africa, in the 
possession of the Royal African Company, and of the number of the soldiers therein, 
and also the state and condition of the military stores, castles, slaves, canoes and 
other vessels and things, belonging to the said company, and necessary for the use 
and defence of the said forts and settlements, and shall with all possible despatch 
report how they find the same." 

Here the fact is stated that the "Royal African Company," (a company that 
had been in existence long previous to the passing of this act,) had held " castle 
slaves " " for the use and defence of the said forts and settlements." The act does 
not .say directly whether this practice was legal or illegal ; although it seems to 
imply that, whether legal or illegal, it was tolerated with the knowledge and a])pro- 
bation of Parliament. 

But the most distinct approbation given to slavery by the act, is implied in the 
twenty-eighth section, in these words : 

" That it shall and may be lawful for any of his majesty's subjects tra(!iiig to 
Africa, for the security of their goods and slaves, to erect houses and warehouses, 
under the protection of the said forts," &c. 

Although even this language would not be strong enough to overturn previously 
established principles of English law, and give the slave holders a legal right of 
property in their slaves, in any place where English law had previously been ex- 
pressly established, (as it had been in the North American colonies,) yet it sutli- 
ciently evinces that Parliament approved of Englishmen holding slaves in tiio 
settlements onthecoast of Africa, in conformity with the customs of that couniry. 
But it implies no authority for transporting their slaves to America ; it does noil.mg 
towards legalizing slavery in America; it implies no toleration even of slavery 
anywhere, except upon the coast of Africa. Had slavery been positively and 



THE COLONIAL CHARTERS, 



31 



kw both for England and the colonies. And if so, there was no 
constitiUional slavery in the colonies up to the time of the revolu 
tion. 

expliciily legalized on the coast of Africa, it would still have been a local institu- 
tion, f 

This reasoning may appear to some like quibbling ; and it would perhaps be ho, 
were not the rule well settled that nothing but explicit and irresistible lang:uage 
can be legally held to authorize anything inconsistent with natural right, and with 
the fundamental principles of a government. 

That this statute did not legalize the right of property in man, (unless as a local 
principle on the coast of Africa,) we have the decision of Lord Mansfield, who 
held that it did not legalize it in England ; and if it did not legalize it in England, 
it did not legalize it in any of the colonies where the principles of the common 
law prevailed. Of course it did not legalize it in the North American colonies. 

But even if it were admitted that this statute legalized the right of property, on 
the part of the slave trader, in his slaves taken in Africa after the passage of the 
act, and legalized the sale of such slaves in America, still the statute would be 
ineffectual to sustain the legality of slavery, in general, in the colonies. It would 
only legalize the slavery of those particular individuals, who should be transported 
from Africa to America, subsequently to the passage of this act, and in strict con- 
formity with the law of this act — (a thing, by the way, that could now be proved 
in no case whatever.) This act was passed in 1749 — 50, and could therefore do 
nothing towards legalizing the slavery of all those who had, for an hundred and 
thirty years previous, been held in bondage in Virginia and elsewhere. And as 
no distinction can now be traced between the descendants cf those who were .m- 
ported under this act, and those who had illegally been held in bondage prior to its 
passage, it would be of no practical avail to slavery now, to prove, (if it could be 
proved,) that those introduced into the country subsequent tc 1750, were legally tne 
Droperty of those who introduced them. 



32 THE UNCONSTITUTIONALITY OF SLAVERY. 

CHAPTER IV. 

COL O^ lAL STATUTES. 

But the colonial legislation on the subject of slavery, was not 
only void as being forbidden by the colonial charters, but in many 
of the colonies it was void for another reason, viz., that it did not 
sufficiently define the persons who might be made slaves. 

Slavery, if it can be legalized at all, can be legalized only by 
positive legislation. Natural law gives it no aid. Custom 
imparts to it no legal sanction. This v/as the doctrine of the 
King's Bench in Somerset's case, as it is the doctrine of common 
sense. Lord Mansfield said, " So high an act of dominion must 
be recognized by the law of the country where it' is used. * =* =* 
The state of slavery is of such a nature, that it is incapable of 
being introduced on any reasons, moral or political — but only 
positive law, which preserves its force long after the reasons, occa- 
sion, and time itself from whence it was created, is erased from 
the memory. It is so odious that nothing can be suffered to sup- 
port it but positive law." 

Slavery, then, being the creature of positive legislation alone, 
can be created only by legislation that shall so particularly 
describe the persons to be made slaves, that they may be distin- 
guished from all others. If there be any doubt left by the letter 
of the law, as to the persons to be made slaves, the efficacy of all 
other slave legislation is defeated simply by that uncertainty. 

In several of the colonies, including some of those where slaves 
were most numerous, there were either no laws at all defining the 
persons who might be made slaves, or the laws, which attempted 
to define them, were so loosely framed that it cannot now be 
known who are the descendants of those designated as slaves, and 
who of those held in slavery without any color of law. As the 
presumption must — under the United States constitution — and 
indeed under the state constitutions also — be always in favor of 
liberty, it would probably now be impossible for a slaveholder to 
prove, in one case in an hundred, that his slave was descended, 
(through the maternal line, according to the slave code,) from any 
one who was originally a slave within the description given by 
the statutes. 



COLONIAL STATUTES. 33 

When slavery was first introduced into the country, there were 
no laws at all on the subject. Men bought slaves of ihe slave 
traders, as they would have bought horses ; and held them, and 
compelled them to labor, as they would have done horses, that is, 
by brute force. By common consent among the white race, this 
practice was tolerated without any law. At length slaves had in 
this way become so numerous, that some regulations became 
necessary, and the colonial governments began to pass statutes, 
which assumed the existence of slaves, although no laws defining 
the persons who might be made slaves, had ever been enacted. 
For instance, they passed statutes for the summary trial and 
punishment of slaves ; statutes permitting the masters to chastise 
and baptize their slaves,^ and providing that baptism should not 
be considered, in law, an emancipation of them. Yet all the 
while no act had been passed declaring who might be slaves. 
Possession was apparently all the evidence that public sentiment 

* "Chastise.'^ An act passed in South Carolina in 1740, authorized slaves to sue 
for their liberty, by a guardian appointed for the purpose. The act then provides 
that if judgment be for the slave, he shall be set free, and recover damages ; " but 
in case judgment shall be given for the defendant, (the master,) the said court is 
hereby fully empowered to inflict such corporeal punishment, not extending to life 
or limb, on the ward of the plaintiff, (the slave,) as they in their discretion shall see 
fit." — Brevard's Digest, vol. 2, p. 130. 

"Baptize." In 1712 South Carolina passed this act: 

"Since charity and the Christian religion which we profess, obliges us to wish 
well to the souls of all men, and that religion may not be made a pretence to alter 
any man's property and right, and that no persons may neglect to baptize their 
negroes or slaves, or suffer them to be baptized, for fear that thereby they should 
be manumitted and set free : Be it there/ore enacted, That it shall be, and is hereby 
declared lawful for any negro or Indian slave, or any other slave or slaves whatso- 
ever, to receive and profess the Christian faith, and be thereunto baptized. But that 
notwithstanding such slave or slaves shall receive and profess the Christian reli- 
gion, and be baptized, he or they shall not thereby be manumitted or set free, or his 
or their owner, master or mistress lose his or their civil right, property and authority 
over such slave or slaves, but that the slave or slaves, with respect to his or their 
servitude, shall remain and continue in the same state and condition, that he or 
they was in before the making of this act." — Grimke,p. 18. Brevard, vol. 2, 
p. 229. 

In 1667, the following statute was passed in Virginia t 

" Whereas, some doubts have arisen whether children that are slaves by birth, 
and by the charity and piety of their owners made partakers of the blessed sacra- 
ment of baptism, should by virtue of their baptism be made free ; Jt is enacted and 
declared by this grand assembly, and the authority thereof, that the conferring of 
baptism doth not alter the condition of the person as to his bondage or freedom ; 
that divers masters, freed from this doubt, may more carefully endeavour the propa- 
gation of Christianity by permitting children, though slaves, or those of greater 
growth, if capable to be admitted to that sacrament." — Hening's Statutes, vol 2. 
p. 260. 



34 THE UNCONSTITUTIONALITY OF SLA\ EEY. 

demanded, of a master's property in his slave. Under such a 
code, multitudes, who had either never been purchased as slaves, 
or who had once been emancipated, were doubtless seized and 
reduced to servitude by individual rapacity, without any more 
public cognizance of the act, than if the person so seized had been 
a stray sheep. 

Virginia. Incredible as it may seem, slavery had existed in 
Virginia fifty years before even a statute was passed for the pur- 
pose of declaring who might be slaves ; and then the persons were 
so described as to make the designation of no legal effect, ai least 
as against Africans generally. And it was not until seventy-eight 
years more, (an hundred and twenty-eight years in all,) that any 
act was passed that would cover the case of the Africans gene- 
rally, and make them slaves. Slavery was introduced in 1620, 
but no act was passed even purporting to declare who might be 
slaves, until 1670. In that year a statute was passed in these 
words : " That all servants, not being Christians, imported into 
this country by shipping, shall be slaves for their lives."* 

This word " servants " of course legally describes individuals 
kno\vn as such to the laws, and distinguished as such from other 
persons generally. But no class of Africans " imported," were 
known as " servants," as distinguished from Africans generally, 
or in any manner to bring them within the legal description of 
" servants," as here used. In 1682 and in 1705 acts were again 
passed declaring " that all servants," &c., imported, should be 
slaves. And it was not until 1748, after slavery had existed an 
hundred and twenty-eight years, that this description was changed 
for the following : 

" That all persons, who have been or shall be imported into this 
colony," &c., &c., shall be slaves.t 

In 1776, the only statute in Virginia, under which the slave- 
holders could make any claim at all to their slaves, was passed as 
late as 1753, (one hundred and thirty-three years after slavery 
had been introduced ;) all prior acts having been then repealed, 
without saving the rights acquired under them.t 



* Hening, vol. 2, p. 283. 

tHeiiing_ vol. 5, p. 547-8. 

tin 1753 Virginia passed a statute, occupying some twelve or fifteen pages of the 
statute finoiv, and Intended to cover the whole general suhject of slavery. One of 
llie sections of this act is as follows : 

•' That all and every other act and acts, clause and clauses, heretofore made, fo- 



COLONIAL STATUTES 35 

Even i*" tlie colonial charters had contained no express prohibi- 
tion upon slave laws, it would nevertheless be absurd to pretend 
that the colonial legislature had power, in 1753, to look back an 
hundred and thirty-three j-ears, and arbitrarily reduce to slavery 
all colored persons that had been imported into, or born in the 
colony within that time. If they could not do this, then it fol- 
lows that all the colored persons in Virginia, up to 1753, (only 
twenty-three years before the revolution,) and all their descendants 
to the present time, were and are free ; and they cannot now be 
distinguished from the descendants of those subsequently imported. 
Under the presumption — furnished by the constitution of the 
Dnited States — that all are free, few or no exceptions could now 
be proved. 

In North Carolina no general law at all was passed, prior to 
the revolution, declaring who might be slaves — (See Iredell's 
statutes, revised by Martin.) 

In South Carolina, the only statutes, prior to the revolution, tha* 
attempted to designate the slaves, was passed in 1740 — after 
slavery had for a long time existed. And even this statute, in 
reality, defined nothing; for the whole purport of it was, to 
declare that all negroes, Indians, mulattoes and mestizoes, except 
those who were then free, should be slaves. Inasmuch as no prior 
statute had ever been passed, declaring who should be slaves, all 
were legally free ; and therefore all came within the exception in 
favor of free persons.* 

or concerning any matter or thing within the provision of this act, shall be and are 
hereby rep<>aled." — Hcning^s Statutes, vol. 6, p. 369. 

No reservation being made, by this section, of rights acquired under former stat- 
utes, and slave property being a matter dependent entirely upon statute, all title to 
slave property, acquired under former acts, was by this act annihilated ; and all the 
slaves in the State were made freemen, as ag-ainst all prior legislation. And the 
slaves of the State were thenceforward held in bondage only by virtue of another 
section of the same act, which was in these words : 

" That all persons who have been, or shall be imported into this colony, by sea or 
land, and were not Christians in their native country, except Turks and Moors in 
amity with his majesty, and such who can prove their being free in England, or 
any other Christian country, before they were shipped for transportation hither, 
shall be accounted slaves, and as such be here bought and sold, notwithstanding a 
conversion to Christianity after their importation." — Hening, vol. 6, p. 350 -7. 

The act also provided, "That all children shall be bond or free, according to the 
condition of their mothers and the particular directions of this act." 

*The following is the preamble and the important enacting clause of this statute 
of 1740: 

" Whereas, in his majesty's plantations in America, slavery has been introduced 



36 THE "JNCONSTITUTIONALITY OF SLAVERY. 

The same law, in nearly the same words, was passed in Geor- 
gia, in 1770. 

These were the only general statutes, under which slaves were 
held in those four States, (Virginia, North Carolina, South Caro- 
lina and Georgia,) at the time of the revolution. They would all, 
for the reasons given, have amounted to nothing, as a foundation 
for the slavery now existing in those states, even if they had no; 
been specially prohibited by their charters. 



CHAPTER V. 

THE DECLARATION OF INDEPENDENCE. 

Admitting, for the sake of the argument, that prior to the revolu- 
tion, slavery had a constitutional existence, (so far as it is possible 
that crime can have such an existence,) was it not abolished by the 
declaration of independence ? 

The declaration was certainly the constitutional law of this 
country for certain purposes. For example, it absolved the people 
from their allegiance to the English crown. It would have been 
so declared by the judicial tribunals of this country, if an American, 
during the revolutionary war, or since, had been tried for treason 
to the crown. If, then, the declaration were the constitutional 
law of the country for that purpose, was it not also constitutional 
law for the purpose of recognizing and establishing, as law, the 
natural and inalienable right of individuals to life, liberty, and the 
pursuit of happiness? The lawfulness of the act of absolving 



and allowed ; and the people commonly called negroes, Indians, mulattos and mes- 
tizoes have (been) deemed absolute slaves, and the subjects of property in the 
hands of particular persons ; the extent of whose power over such slaves ought to 
be settled and limited by positive laws, so that the slaves may be kept in due sub- 
jection and obedience, and the owners and other persons having the care and 
government of slaves, may be restrained from exercising too great rigor and cruelty 
over them ; and that the public peace and order of this province may be preserved : 
Be it enacted, That all negroes, Indians, (free Indians in amity with this govern- 
ment, and negroes, mulattos and mestizoes, who are now free, excepted,) mulattos 
and mestizoes, who now are or shall hereafter be in this province, and all their issue 
and offspring born or to be born, shall be and they are hereby declared to be and 
remain forever hereafter absolute slaves, and shall follow the condilioa of tba 
mother,"' &c. — Grimke, p. 163 - 4. Brevard, vol. 2, p. 229. 



THE DECIARATION OF INDEPEJSBSNCE. 37 

themselves from their allegiance to the crown, was avowed by the 
people of the country — and that too in the same instrument thai 
declared the absolution — to rest entirely upon, and to be only a 
consequence of the natural right of all men to life, liberty, and the 
pursuit of happiness. If, then, the act of absolution was lawful, 
does it not necessarily follow that the principles that legalized the 
act, were also law ? And if the country ratified the act of absolu- 
tion, did they not also necessarily ratify and acknowledge the 
principles which they declared legalized the act ? 

It is sufficient for our purpose, if it be admitted that this principle 
was the law of the country at that particular time, (1776) — even 
though it had continued to be the law for only a year, or even a 
day. For if it were the law of the country even for a day, it 
freed every slave in the country — (if there were, as we say there 
were not, any legal slaves then in the country.) And the burden 
would then be upon the slaveholder to show that slavery had 
since been coiistitutionally established. And to show this, he 
must show an express constitutional designation of the particular 
individuals, who have since been made slaves. Without such 
particular designation of the individuals to be made slaves, (and 
not even the present constitutions of the slave States make any 
such designation,) all constitutional provisions, purporting to au- 
thorize slavery, are indefinite, and uncertain in their application, 
and for that reason void. 

But again. The people of this country — in the very instru- 
ment by which they first announced their independent political 
existence, and first asserted their right to establish governments 
of their own — declared that the natural and inalienable right of 
all men to life, liberty, and the pursuit of happiness, was a " self- 
evident truth." 

Now, all " self-evident truths,'''' except such as may be explicitly, 
or by necessary implication, denied, (and no government has a 
right to deny any of them,) enter into, are taken for granted by, 
and constitute an essential part of all constitutions, compacts, and 
systems of government whatsoever. Otherwise it would be im- 
possible for any systematic government to be established ; for it 
must obviously be impossible to make an actual enumeration of 
all the " self-evident truths," that are to be taken into account in 
the administration of such a government. This is more especially 
true of governments founded, like ours, upon contract. It is 
clearly impossible, in a contract of government, to enumerate all 
A 



38 THE UNCONSTITUTIONALITV OF SLAVERY. 

the " self-evident truths " which must be acted upon in the 
administration of law. And therefore they are all taken for 
granted unless particular ones be plainly denied. 

This principle, that all " self-evident truths," though not enume- 
rated, make a part of all laws and contracts, unless clearly denied, 
is not only indispensable to the very existence of civil society, but 
it is even indispensable to the administration of justice in every 
individual case or suit, that may arise, out of contract or otherwise, 
between individuals. It would be impossible for individuals to 
make contracts at all, if it were necessary for them to enumerate 
all the " self-evident truths," that might have a bearing upon their 
construction before a judicial tribunal. All such truths are there- 
fore taken for granted. And it is the same in all compacts of 
government, unless particular truths are plainly denied. And 
governments, no more than individuals, have a right to deny them 
in any case. To deny, in any case, that " self-evident truths " are 
a part of the law, is equivalent to asserting that " self-evident 
falsehood " is law. 

If, then, it be a " self-evident truth," that all men have a natural 
and inalienable right to life, liberty, and the pursuit of happiness, 
that truth constitutes a part of all our laws and all our constitu- 
tions, unless it have been unequivocally and authoritatively denied. 

It will hereafter be shown that this "self-evident truth" has 
never been denied by the people of this country, in their funda- 
mental constitution, or in any other explicit or authoritative man- 
ner. On the contrary, it has been reiterated, by them, annually, 
daily and hourly, for the last sixty-nine years, in almost every 
possible way, and in the most solemn possible manner. On the 
4th of July, '76, they collectively asserted it, as their justification 
and authority for an act the most momentous and responsible of 
any in the history of the country. And this assertion has never 
been retracted by us as a people. We have virtually reasserted 
the same truth in nearly every state constitution since adopted. 
We have virtually reasserted it in the national constitution. It 
is a truth that lives on the tongues and in the hearts of all. It is 
true we have, in our practice, been so unjust as to withhold the 
benefits of this truth from a certain class of our fellow-men. But 
even in this respect, this truth has but shared the common fate of 
other truths. They dre generally alloAv^d but a partial applica- 
tion. Still, this truth itself, as a truth, has never be^n denied by 
us, as a people, in any authentic fonn, or otherwise than impliec'l)' 



THE DECLARATION OF INDEPENDENCE. 39 

by our practice in particular cases. If it have, say when a)id 
where If it have not, it is still law ; and courts are bound to 
admin.ster it, as law, impartially to all. 

Our courts would want no other authority than this truth, thus 
acknowledged, for setting at liberty any individual, other than one 
having negTO blood, whom our governments, state or national, 
should assume to authorize another individual to enslave. Why 
then, do they not apply the same law in behalf of the African ? 
Certainly not because it is not as much the law of his case, as of 
others. But it is simply because they laill not. It is because the 
courts are parties to an understanding, prevailing among the 
white race, but expressed in no authentic constitutional form, that 
the negro may be deprived of his rights at the pleasure of avarice 
and power. And they carry out this unexpressed understanding 
in defiance of, and suffer it to prevail over, all our constitutional 
principles of government — all our authentic, avowed, open and 
fundamental law. 



CHAPTER VI. 

THE STATE CONSTITUTIONS OF 1789. 

Of all the state constitutions, that were in force at the adoption 
of the constitution of the United States, in 1789, not one of them 
established, or recognized slavery. 

All those parts of the state constitutions, (i. e. of the old thirteen 
states,) that recognize and attempt to sanction slavery, have been 
inserted, by amendments, since the adoption of the constitution of 
the U?iited States. 

All the states, except Rhode Island and Connecticut, formed 
constitutions prior to 17S9. Those two states went on, beyond 
this period, under their old charters.* 

*The State Constitutions of 17S9 were adopted as follows: Georgia, 1777- 
South Carolina, 1778; North Carolina, 1776; Virginia, 1776; Maryland, 1776, 
Delaware, 1776 ; Pennsylvania, 1776 ; New Jersey, 1776 ; New York, 1777 ; Mas 
sachusetts, 1780; New Hampshire, 1763. 

These earlv Constitutions oir^ht to he collected and j uhlished with appropriate 
notes. 



40 THE UNCONSTITUTIONALITY OF SLAVERY. 

The eleven constitutions formed, were all democratic in their 
general character. The most of them eminently so. Thej' gener- 
ally recognized, in some form or other, the natural rights of men, 
as one of the fundamental principles of the government. Several 
of them asserted these rights in the most emphatic and authorita- 
tive manner. Most or all of them had also specific provisions 
incompatible with slavery. Not one of them had any specific 
recognition of the existence of slavery. Not one of them granted 
any specific authority for its continuance. 

The only provisions or words in any of them, that could be 
claimed by anybody as recognitions of slavery, are the following, 
VIZ. : 

1. The use of the words " our negroes " in the preamble to the 
eonstitution of Virginia. 

2. The mention of " slaves " in the preamble to the constitution 
of Pennsylvania. 

3. The provisions, in some of the constitutions, for continuing 
in force the laws that had previously been " in force " in the 
colonies, except when altered by, or incompatible with the new 
constitution. 

4. The use, in several of the constitutions, of the words " free" 
and " freemen." 

As each of these terms and clauses may be claimed by some 
persons as recognitions of slavery, they are worthy of particular 
notice. 

1. The preamble to the frame of government of the constitution 
of Virginia speaks of negroes in this connexion, to wit : It charges 
George the Third, among other things, with " prompting mlf 
negroes to rise in arms among us, those very negroes, whom, by 
an inhuman use of his negative, he hath refused us permission to 
exclude by law." 

Here is no assertion that these " negroes " were slaves ; but only 
that they were a class of people whom the Virginians did not wish 
to have in the state, in any capacity — whom they wished " to ex- 
clude by law." The language, considered as legal language, no 
more implies that they were slaves, than the charge of having 
prompted " our women, children, farmers, mechanics, or our peo- 
ple with red hair, or our people with blue eyes, or our Dutchmen, 
or our xrishmen to rise in arms among us," would have implied 
that those portions of the people of Virginia were slaves. And 
especially when it is considered that slavery had had no prioi 



THE STATE CONSTITUTIONS OF 1789. 41 

legal existence, this reference to " negroes " authorizes no legal 
inference whatever in regard to slavery. 

The rest of the Virginia constitution is eminently democratic. 
The bill of rights declares " that all men are by nature equally 
free and independent, and have certain inherent rights," * ^ 
^' namely, the enjoyment of life and liberty, with the means of 
a "quiring and possessing property, and pursuing and obtaining 
happiness and safety." 

2. The preamble to the Pennsylvania constitution used the word 
" slaves " in this connexion. It recited that the king of Great 
Britain had employed against the inhabitants of that common- 
wealth, " foreign mercenaries, savages and slaves." 

This IS no acknowledgment that they themselves had any slaves 
of their own ; much less that they were going to continue their 
slavery ; for the constitution contained provisions plainly incom- 
patible with that. Such, for instance, is the following, whicn 
constitutes the first article of the " Declaration of Rights of the 
Inhabitants," (i. e. of all the inhabitants) " of the state of Pennsyl- 
vania." 

" 1. That all men are born equally free and independent, and 
have certain natural, inherent and inalienable rights, among which 
are, the enjoying and defending life and liberty, acquiring, possess- 
ing and protecting property, and pursuing and obtaining happiness 
and safety." 

The 46th section of the frame of government is in these words. 

" The Declaration of Rights is hereby declared to be a part of 
the constitution of this commonwealth, and ought never to be 
violated on any pretence whatever." 

Slavery was clearly impossible under these two constitutional 
provisions, to say nothing of others. 

3. Several of the constitutions provide that all the laws of the 
colonies, previously " in force" should continue in force until re- 
pealed, 7inless repugnant to some of the principles of the cojistitu- 
tions themselves. 

Maryland, New York, New Jersey, South Carolina, and per- 
haps one or two others had provisions of this character. North 
Carolina had none, Georgia none, Virginia non(. The slave 
laws of these three latter states, then, necessarily fell to the ground 
on this change of government. 

Maryland, New York, New Jersey and South Carolina had acts 
upon their stain te books, asmming the existence of slavery, and 
4*- 



^ THE UNCONSTITUTIONALITY OF SLAVERY. 

pretending to legislate in regard to it ; and it may perhaps be 
argued that those laws were continued in force under the provision 
referred to. But those acts do not come within the above descrip- 
tion of "laws in force" — and for this reason, viz., the acts were 
originally unconstitutional and void, as being against the charters, 
under which they were passed ; and therefore never nad been 
legally " in force," however they might have been actually carried 
into execution as a matter of might, or of pretended law, by the 
white race. 

This objection applies to the slave acts of all the colonies 
None of them could be continued under this provision. — None of 
them, legally speaking, were " laws in force." 

But in particular states there were still other reasons agains* 
the colonial slave acts being valid under the new constitutions. 
For instance : South Carolina had no statute (as has before been 
mentioned) that designated her slaves with such particularity as to 
distinguish them from free persons ; and for that reason none of 
her slave statutes were legally " in force." 

New Jersey also was in the same situation. She had slave 
statutes ; but none designating the slaves so as to distinguish them 
from the rest of her population. She had also one or more spe- 
cific provisions in her constitution incompatible with slavery, to wit: 
" That the common law of England =* =^ * =^ =^ shall remain in 
force, until altered by a future law of the legislature ; such pans 
only as are repugnant to the rights and privileges contained in this 
charter." (Sec. 22.) 

Maryland had also, in her new constitution, a specific provision 
incompatible with the acts on her colonial statute book in regard 
to slavery, to wit : 

" Sec. 3. That the inhabitants" — mark the word, for it includes 
all the inhabitants — "that the inhabitants of Maryland are 
entitled to the common law of England, and the trial by jury, 
according to the course of that law," (fee. 

This guaranty, of " the common law of England " to all " the 
inhabitants of Maryland," without (discrimination, is incompatible 
with any slave acts that existed on the statute book ; and the latter 
would therefore have become void under the constitution, even if 
they had not been previously void under the colonial charter. 

4. Several of these state constitutions have used the words 

free" and " freemen." 

For instance: That of South Carolina provided, (Sec 13.'^ 



THE STATE CONSTITUTIONS OF 1789. 43 

jhat the electors of that state should be "/ree white men." That 
of Georgia (Art. 11,) and that of North Carolina (Art. 40,) ust 
the term " free citizen." That of Pennsylvania (Se:. 42,) has the 
term " free denizen." 

These four instances are the only ones I have found in all the 
eleven constitutions, where any class of persons are designated by 
the term " free." And it will be seen hereafter, from the connex- 
ion and manner in which the word is used, in these four cases, 
that it implies no recognition of slavery. 

Several of the constitutions, to wit, those of Georgia, South 
Carolina, North Carolina, Maryland, Delaware, Pennsylvania, 
New York — but not Virginia, New Jersey, Massachusetts or New 
Hampshire — repeatedly use the word " freeman " or " freemen," 
when describing the electors, or other members of the state. 

The only questions that can arise from the use of these words 
" free " and " freeman," are these, viz. : Are they used as the correl- 
atives, or opposites of slaves ? Or are they used in that political 
sense, in which they are used in the common law of England, 
and in which they had been used in the colonial charters, viz., tc 
describe those persons possessed of the privilege of citizenship, or 
some corporate franchise, as distinguished from aliens, and those 
not enjoying franchises, although free from personal slavery ? 

If it be answered, that they are used in the sense first mentioned, 
to wit, as the correlatives or opposites of slavery — then it would 
oe argued that they involved a recognition, at least, of the exist- 
ence of slavery. 

But this argument — whatever it might be worth to support an 
nnplied admission of the acUial existence of slavery — would be 
entirely insufficient to support an implied admission either of its 
legal, or its continued existence. Slavery is so entirely contrary 
to natural right ; so entirely destitute of authority from natural 
law ; so palpably inconsistent with all the legitimate objects of 
government, that nothing but express and explicit provision can be 
recognized, in law, as giving it any sanction. No hints, insinua- 
tions, or unnecessary implications can give any ground for so 
glaring a departure from, and violation of all the other, the general 
and the legitimate principles of the government. If, then, it were 
admitted that the words " free " and " freemen " were used as the 
correlatives of slaves, still, of themselves, the words would give nc 
direct or sufficient authority for laws establishing or continuing 
slavorv. To call one man free, gives no lethal authority for mak 



44 THE UNCONSTITUTIONALITY OF SLAVERY. 

ing another man a slave. And if, as in the case of these constitu- 
tions, no express authority for slavery were given, slavery would 
be as much unconstitutional as though these words had not been 
used. The use of these words in that sense, in a constitution, 
under which all persons are presumed to be free, would involve no 
absurdity, although it might be gratuitous and unnecessary. 

It is a rule of law, in the construction of all statutes, contracts 
and legal instruments whatsoever — that is, those which courts 
design, not to invalidate, hut to enforce — that where words are 
susceptible of two meanings, one consistent, and the other incon- 
sistent, with liberty, justice and right, that sense is always to be 
adopted, which is consistent with right, unless there be something 
in other parts of the instrument sufficient to prove that the other 
is the true meaning. In the case of no one of all these early state 
constitutions, is there anything in the other parts of them, to show 
that these words " free " and " freemen " are used as the correla- 
tives of slavery. The rule of law, therefore, is imperative, that 
they must be regarded in the sense consistent with liberty and 
right. 

If this rule, that requires courts to give an innocent construction 
to all words that are susceptible of it, were not imperative, courts 
might, at their own pleasure, pervert the honest meaning of the 
most honest statutes and contracts, into something dishonest, for 
there are almost always words used in the most honest legislation, 
and in the most honest contracts, that, by implication or otherwise, 
are capable of conveying more than one meaning, and even a dis- 
honest meaning. If courts could lawfully depart from the rule, 
that requires them to attribute an honest meaning to all language 
that is susceptible of such a meaning, it would be nearly impossible 
to frame either a statute or a contract, which the judiciary might 
not lawfulhj pervert to some purpose of injustice. There would 
obviously be no security for the honest administration of any 
honest law or contract whatsoever. 

This rule applies as well to constitutions as to contracts and 
statutes ; for constitutions are but contracts between the people, 
whereby they grant authority to, and establish law for the govern- 
ment. 

What other meaning, then, than as correlatives of slavery, are 
the words " free" and " freemen" susceptible of, as they are used 
in the early state constitutions ? 

Among the definitions given by Noah Webster are these : 



THE STATE CONSTITUTIONS OF 1789. 45 

" Freeman, One who enjoys, or is entitled to a franchise or 
peculiar privilege ; as the freemen of a city or state." 

"■Free. Invested with franchises ; enjoying certain immunities ; 
with of — as a man/?-ee q/'the city of London." 

" Possessing without vassalage, or slavish conditions ; as a man 
free o/his farm." 

In England, and in the English law throughout, as it existed 
before and since the emigration of our ancestors to this country, 
the words " free " and " freemen " were political terms in the most 
common use ; and employed to designate persons enjoying some 
franchise or privilege, from the most important one of general 
citizenship in the nation, to the most insignificant one in any 
incorporated city, town or company. For instance : A man was 
said to be a "free British subject" — meaning thereby that he 
was a naturalized or native bom citizen of the British government, 
as distinguished from an alien, or person neither naturalized nor 
native born. 

Again. A man was said to be " free of a particular trade in the 
city of London" — meaning thereby, that by the bye-laws of the 
city of London, he was permitted to follow that trade — a privilege 
which others could not have without having served an appren- 
ticeship in the city, or having purchased the privilege of the city 
government. 

The terms "free" and "freemen" were used with reference to 
a great variety of privileges, which, in England, were granted to 
one man, and not to another. Thus members of incorporated com- 
panies were called '■'■freemen of the company," or "free members 
of the company ;" and were said to be "free of the said company." 
The citizens of an incorporated city Avere called " the freemen of 
the city," as " freemen of the city of London." 

In Jacobs' Law Dictionary the following definitions, among 
others, are given of the word " freeman." 

"Freeman — liher homo." * * "In the distinction of a 
freeman from a vassal" under the feudal policy, liber homo was 
commonly opposed to vassiis, or vassalus ; the former denoting an 
allodial proprietor ; the latter one who held of a superior." 

"The title o^ o. freeman is also given to any one admitted to the 
freedom of a corporate town, or of any other corporate body, con- 
sisting, among other members, of those called freemen." 

" There are three ways to be a freeman of London ; by servi- 
tude of an apprenticeship ; by birthright, as being the son of a 



46 THE UNCONSTITUTIONALITY OF SLAVERY. 

freeman ; and by redemption, i. e. by purchase, under an order of 
the court of aldermen." 

" The customs of the city of London shall be tried by the certifi- 
cate of ihe Mayor and Aldermen, * * =^ as the custom of 
distributing the effects of freemen deceased : of enrolling appren- 
tices, or that he who \?, free of 07ie trade may use another." 

" Elections of aldermen and common-councilmen are to be by 
freemen householders." 

" An agreement on marriage, that the husband shall take up the 
freedom of London, binds the distribution of the effects." 

The foregoing and other illustrations of the use of the words 
" free " and " freemen," may be found in Jacob's Law Dictionary, 
under the head of Freeman, London, &c. 

And this use of these words has been common in the English 
laws for centuries. The term " freeman " is used in Magna 
Charta, (1215). The English statutes abound with the terms, in 
reference to almost every franchise or pecuHar privilege, from the 
highest to the lowest, known to the English laws. It would be 
perfectly proper, and in consonance Avith the legal meaning and 
common understanding of the term, to say of Victoria, that " she 
is free of the throne of England," and of a cobbler, that he " is 
free of his trade in the city of London." 

But the more common and important signification of tlie words 
IS to designate the citizens, native or naturalized, and those 
specially entitled, as a matter of political and acknowledged right, 
to participate in, or be protected by the government, as (iistii!- 
guished from aliens, or persons attainted, or deprived of their 
political privileges as members of the state. Thus they use (\v^. 
term " free British subject" — " freeman of the realm," 6cl-. l.i 
short, the terms, when used in political papers, have a meanini; 
very nearly, if not entirely synonjmaous, with that which we, in 
this country, now give to the word citizen. 

But throughout the English law, and among all the variety of 
ways, in which the words " free " and " freemen " are used, as 
legal terms, they are never used as the correlatives, or opposites of 
slaves or slavery — and for the reason that they have in England 
no such persons or institutions, known to their laws, as slaves or 
slavery. The use of the words " free " and " freemen," therefore, 
do not in England at all imply the existence of slaves or slavery. 

This use of the words " free " and " freemen," which is common 
to the English law, was introduced into this country at its first set- 



THE STATE CONSTITUTIONS OF 1789, 47 

tlement, in all, or very nearly all the colonial charters, patents, 
&c., and continued in use, in this sense, until the time of the 
revolution ; and, of course, until the adoption of the first state con- 
stitutions. * 

The persons and companies, to whom the colonial charters 
were granted, and those who were afterwards to be admitted as 
their associates, were described as " freemen of said colony," 
" freemen of said province," " freemen of said company," " free- 
men of the said company and body politick," &c. (See charter of 
Rhode Island.) 

Many, if not all the charters had a provision similar in sub- 
stance to the following in the charter to Rhode Island, viz. : 

" That all and every the subjects of us, our heirs and success- 
ors," (i. e. of the king of England granting the charter,) " which 
are already planted and settled within our said colony of Provi- 
dence Plantations, or which shall hereafter go to inhabit within 
the said colony, and all and every of their children which have 
been born there, or which shall happen hereafter to be born there, 
or on the sea going thiiher, or returning from thence, shall have 
and enjoy all liberties and immunities oi free and natural subjects, 
Avithin any of the dominions of us, our heirs and successors, to all 
intents, constructions and purposes whatsoever, as if they and 
every of them were born within the realm of England." 

The following enactment of William Penn, as proprietary and 
Governor of the Province of Pennsylvania and its territories, illus- 
trates one of the common uses of the word " freeman," as known 
lo the English law, and as used in this country prior to the 
revolution — that is, as distinguishing a native born citizen, and 
one capable of holding real estate, &c., from a foreigner, not 
naturalized, and on that account subject to certain disabilities, such 
as being incompetent to hold real estate. 

" And forasmuch as it is apparent that the just encouragement 
of the inhabitants of the province, and territories thereunto belong- 
ing, is likely to be an effectual way for the improvement thereof; 
•xnd since some of the people that live therein and are likely to 
come thereunto, are foreigners, and so not freemen, according to 
*he acceptation of the laws of England, the consequences of v)Jiick 
•^lay -prove very detrimental to them in their estates and traffic^ 

* Since that time the words " free" and " freemen" have been gradually falling 
into disuse, and the word citizen been substituted — doubtless for the reason [hat it 
is not pleasant to our pride or our humanity to use words, one of whose sigTiifica- 
lions serves to suggest a contrast between ourselves and slaves. 



48 THE UNCONSTITUTIONAL.TY OF SLAVERY. 

and so injurious to the prosperity of this province and terntories 
thereof. Be it enacted, by the proprietary and governor of the 
province and counties aforesaid, by and with the advice and con- 
sent of the deputies of \\\e freemen thereof, in assembly met, That 
all persons who are strangers and foreigners, that do now inhabit 
this province and counties aforesaid, that hold land in fee in the 
same, according to the law of a freeman, and who shall solemnly 
promise, within three months after the publication thereof, in their 
respective county courts where they live, upon record, faith and 
allegiance to the king of England and his heirs and successors, 
and fidelity and lawful obedience to the said William Penn, pro- 
prietary and governor of the said province and territories, and his 
heirs and assigns, according to the king's letters patents and 
deed aforesaid, shall be held and reputed freemen of the province 
and counties aforesaid, in as ample and full a manner as any per- 
son residing therein. And it is hereby further enacted, by the 
authority aforesaid. That when at any time any person, that is a 
foreigner, shall make his request to the proprietary and governor 
of this province and territories thereof, for the aforesaid freedom, 
the said person shall be admitted on the conditions herein ex- 
pressed, paying at his admission twenty shillings sterling, and no 
more, anything in this law, or any other law, act, or thing in this 
province, to the contrary in any wise notwithstanding. " 

" Given at Chester," &c., " under the hand and broad seal of 
William Penn, proprietary and governor of this province and 
territories thereunto belonging, in the second year of his govern- 
ment, by the king's authority, W. Penn.'"^ 

Up to the time of our revolution, the only meaning which the 
words " free " and " freemen " had, in the English law, in the 
charters granted to the colonies, and in the important documents of 
a political character, when used to designate one person as 
distinguished from another, was to designate a person enjoying 
some franchise or privilege, as distinguished from aliens or persons 
not enjoying a similar franchise. They were never used to 
designate a free person as distinguished from a slave — for the 
very sufficient reason that all these fundamental laws presumed 
that there were no slaves. 

Was such the meaning of the words " free " and " freemen," as 
used in the constitutions adopted prior to 1789, in the States of 
Georgia, North and South Carolina, Maryland, Delaware and 
New York ? 

The legal rule of interpretation before mentioned, viz., that nn 
innocent meaning must be given to all words that are susceptible 

* Dallas' edition of the Laws of Pennsylvania, vol. 1, Appendix, page 25. 



THE STATE CONSTITUTIONS OF 17S9 49 

of it — would compel us to give the words this meaning, instead 
of a meaning merely correlative with slavery, even if we had no 
other ground than the rule alone, for so doing. But we have 
other grounds. For instance : — Several of these constitutions 
have themselves explicitly given to the words this meaning. 
While not one of them has given them a meaning correlative 
with slaves, inasmuch as none of them purport either to establish, 
authorize, or even to know of the existence of slavery. 

The constitution of Georgia (adopted in 1777) evidently uses 
the word " free " in this sense, in the following article : 

" Art. 11. No person shall be entitled to more than one vote, 
which shall be given in the county where such person resides, 
except as before excepted ; nor shall amj person who holds any title 
of nobility, be entitled to a vote, or be capable of serving as a 
representative, or hold any post of honor, profit or trust, in this 
State, while such person claims his title of nobility ; but if the per- 
son shall give tip such distinction, in the manner as may be directed 
by any future legislature, the7i, and in such case, he shall be 
entitled to a vote, and represent, as before directed, and enjoy all 
the other benefits of a free citizen." 

The constitution of North Carolina, (adopted in 1776,) used the 
word in a similar sense, as follows : 

"40. That eYQxy foreigner, who comes to settle in this State, 
having first taken an oath of allegiance to the same, may purchase, 
or by other just means acquire, hold, and transfer land, or other 
real estate, and after one year''s residence be deemed a free 
citizen." 

This (constitution also repeatedly uses the word " freeman ;" 
meaning thereby " a free citizen," as thus defined. 

The constitution of Pennsylvania, (adopted in 1776,) uses the 
word in the same sense : 

*' Sec. 42. Every foreigner, of good character, who comes to 
settle in this State, having first taken an oath or affirmation of 
allegiance to the same, may purchase, or by other just means 
acquire, hold and transfer land or other real estate ; and after one 
yearns residence, shall be deemed a free denizen thereof and 
entitled to all the rights of a natural born subject of this state, 
except that he shall not be capable of being elected a representative 
until after two years' residence." 

The constitution of New York, (adopted in 1777,) uses the word 
m the same manner : 



50 THE UNCONSTITUTIONALITY OF SLAVERY. 

" Sec. 6. That every male inhabitant of full age, who has 
personally resided in one of the counties of this State for six 
months, immediately preceding the day of election, shall at such 
election be entitled to vote for representatives of the said county in 
assembly, if during the time aforesaid he shall have been a free- 
holder, possessing a freehold of the value of twenty pounds, with- 
in the said county, or have rented a tenement therein of the yearly 
value of forty shillings, and been rated and actually paid taxes to 
the State. Provided ahvays, That every person who now is a 
freeman of the city of Albany, or ivho was made a freeman of the 
city of Neia York, on or before the fourteenth day of October, in 
the year of our Lord one thousand seven hundred and seventy-five, 
and shall be actually and usually resident in the said cities respect- 
ively, shall be entitled to vote for representatives in assembly 
within his place of residence." 

The constitution of South Carolina, (formed in 1778,) uses the 
word " free '* in a sense which may, at first thought, be supposed 
to be different from that in which it is used in the preceding cases : 

Sec. 13. The qualification of electors shall be that " every /ree 
white man, and no other person," &c., " shall be deemed a person 
qualified to vote for, and shall be capable of being elected a repre- 
sentative." 

It may be supposed that here the word " free" is used as the 
correlative of slavery ; that it presumes the " whites " to be " free ;" 
and that it therefore implies that other persons than " white " may 
be slaves. Not so. No other parts of the constitution authorize 
such an inference; and the implication from the words themselves 
Clearly is, that some " white" persons might not be " free." The 
distinction implied is between those " white " persons that were 
" free," and those that were not " free." If this were not the 
distinction intended, and if all " white " persons were " free," it 
would have been sufficient to have designated the electors simply 
as "white" persons, instead of designating them as both "free" 
and " white." If, therefore, it were admitted that the word " free," 
in this instance, were used as the correlative of slaves, the impli- 
cation would be that some " white " persons were, or might be 
slaves. There is, therefore, no alternative but to give the word 
" free," in this instance, the same meaning that it has in the 
constitutions of Georgia, North Carolina and Pennsylvania. 

In 1704 South Carolina passed an act entitled, "^« act for 
making aliens free of this part of the Province." This statute 



THE ARTICLES OF CONFEDERATION 61 

remained in force until 17S4, when it was repealed by an act 
entitled ^'An act to confer the right of citizenship on aliens.''''^ 

One more example of this use of the word '■'■freeman.'''' The 
constitution of Connecticut, adopted as late as ISIS, has this pro- 
vision : 

" Art. 6, Sec. 1. All persons who have been, or shall hereafter, 
previous to the ratification of this constitution, be admitted freemen, 
according to the existing laws of this State, shall be electors." 

Surely no other proof can be necessary of the meaning of the 
words " free" and " freeman," as used in the constitutions existing 
in 1789 ; or that the use of those words furnish no implication in 
support of either the existence, or the constitutionality of slavery, 
prior to the adoption of the constitution of the United States in that 
year. 

I have found, in none of the State constitutions before mentioned, 
(existing in 1789,) any other evidence or intimation of the exist- 
ence of slavery, than that already commented upon and refuted. 
And if there be no other, then it is clear that slavery had no legal 
existence under them. And there was consequently no constitU' 
tional slavery in the country up to the adoption of the constitu- 
tion of the United States, 



CHAPTER VII. 

THE ARTICLES OF CONFEDERATION. 

The Articles of Confederation, (formed in 1778,) contained no 
recognition of slavery. The only words in them, that could be 
claimed by anybody as recognizing slavery, are the following, in 
Art. 4, Sec. 1. 

" The better to secure and perpetuate mutual friendship and in- 
tercourse among the people of the different States in this Union, 
the free i?ihabitants of each of these States, paupers, vagabonds 
and fugitives from justice excepted, shall be entitled to all the pri- 
vileges and immunities of free citizens in the several States ; and 
the people of each State shall have free ingress and regress to and 
from any other State, and shall enjoy therein all the privileges of 

* Cooper's edition of the Laws oi'S^otiih Carolina, vols 2 and 4. " Aliens." 



52 THE UNCONSTITUTIONALITY OF SLAVERY. 

trade and commerce, subject to the same duties impositions and 
restrictions, as the inhabitants thereof respectively." 

There are several reasons why this provision contains no legal 
recognition of slavery. 

1. The true meaning of the word " free," as used in the Eng- 
lish law, in the colonial charters, and in the State constitutions up 
to this time, when applied to persons, was to describe citizens, or 
persons possessed of franchises, as distinguished from aliens or 
persons not possessed of the same franchises. Usage, then, would 
give this meaning to the word " free" in this section. 

2. The rules of law require that an innocent meaning should 
be given to all words that will bear an innocent meaning. 

3. The Confederation was a league between States in their cor- 
porate capacity ; and not, like the constitution, a government estab- 
lished by the people in their individual character. The Confedera- 
tion, then, being a league between states or corporations, as such, 
of course recognized nothing in the character of the State govern- 
ments except what their corporate charters or State constitutions 

uthorized. And as none of the State constitutions of the day 
ecognized slavery, the confederation of the State governments 
nould not of course recognize it. Certainly none of its language 
can, consistently with legal rules, have such a meaning given to it, 
when it is susceptible of another that perfectly accords with the 
sense in which it is used in the constitutions of the States, that 
were parties to the league. 

4. No other meaning can be given to the word " free" in this 
case, without making the sentence an absurd, or, at least, a foolish 
and -inconsistent one. For instance, — The word " free" is joined 
to the word " citizen." What reason could there be in applying 
the term "free" to the word " citizen," if the word " free" were 
used as the correlative of slavery ? Such an use of the word would 
imply that some of the "citizens" were, or might be slaves — 

_ which would be an absurdity. But used in the other sense, it 
implies only that some citizens had franchises not enjoyed by others ; 
such, perhaps, as the right of suffrage, and the right of being 
elected to office ; which franchises were only enjoyed by a part of 
the " citizens." All who were born of English parents, for in- 
stance, were " citizens," and entitled to the protection of the 
government, and freedom of trade and occupation, &c., &c., and 
in these respects were distinguished from aliens. Yet a property 
qualification was necessary, in some, if not all the States, to en- 



THE ARTICLES OF CONFEDERATION. 63 

itle even such to the franchises of suffrage, and of eligibility to 
office. 

The terms " free inhabitants" and " people" were probably used 
as synonymous either with " free citizens," or with " citizens" not 
"free" — that is, not possessing the franchises of suffrage and 
eligibility to office. 

Mr. Madison, in the 42d No. of the Federalist, in commenting 
upon the power given to the general government by the new con- 
stitution, of naturalizing aliens, refers to this clause in the Articles 
of Confederation ; and takes it for granted that the word " free" 
was used in that political sense, in which I have supposed it to be 
used — that is, as distinguishing " citizens" and the " inhabitants" 
or " people" proper, from aliens and persons not allowed the fran- 
chises enjoyed by the " inhabitants" and " people" of the States. 
Even the privilege of residence he assumes to be a franchise en- 
titling one to the denomination of " free." 

He says : " The dissimilarity in the rules of naturalization," 
(i. e. in the rules established by the separate States, for under the 
confederation each State established its own rules of naturalization,) 
" has long been remarked as a fault in our system, and as laying 
a foundation for intricate and delicate questions. In the fourth 
article of confederation, it is declared, ' that the free inhabitants 
of each of these States, paupers, vagabonds, and fugitives from 
justice excepted, shall be entitled to all the privileges and immu- 
nities of free citizens in the several States ; and the people of each 
State shall, in every other, enjoy all the privileges of trade and 
commerce,' &c. There is a confusion of language here, which is 
remarkable. Why the terms free inhabitants are used in one part 
of the article, f-ee citizens in another, and people in another ; or 
what was meant by superadding to ' all privileges and immunities 
of free citizens,' ' all the privileges of trade and commerce,' cannot 
easily be determined. It seems to be a construction scarcely 
avoidable, however, that those who come under the denomination 
oi free inhabitants of a State, although not citizens of such State, 
are entitled, in every other State, to all the privileges of free citi- 
zens of the latter ; that is to greater privileges than they may be 
entitled to in their own State ; so that it may be in the power of a 
particular Stale, or rather every State is laid under the necessity, 
not only to confer the rights of citizenship in other States upon any 
whom it may admit to such rights within itself, but upon any whom 
it may allow to become inhabitants within its jurisdiction. But 
were an exposition of the term ' inhabitant' to be admitted, which 
would confine the stipulated privileges to citizens alone, the diffi- 
culty is diminished only, not removed. The A^ery improper power 
would still be retained by each State, of naturalizing aliens in every 
5#. 



54 I'll*- 01\L.OinS111U liOiNAi.il k Of Oi..-iVl!,Kli 

Other State. In one State, residence for a short time confers all the 
rights of citizenship ; in another, : ualifications of greater impor- 
tance are required. An alien, therefore, legally incapacitated for 
certain rights in the latter, may, by previous residence only in the 
former, elude his incapacity, and thus the law of one State be pre- 
posterously rendered paramount to the laws of another, within the 
jurisdiction of the other. 

" We owe it to mere casualty, that very serious embarrassments 
on this subject have been hitherto escaped. By the laws of several 
States, certain descriptions of aliens, who had rendered themselves 
obnoxious, were laid under interdicts inconsistent, not only with 
the rights of citizenship, but with the privileges of residence. What 
would have been the consequence, if such persons, by residence, 
or othei'wise, had acquired the character of citizens under the laws 
of another State, and then asserted their rights as such, both to res- 
idence and citizenship, within the State proscribing them ? What- 
ever the legal consequences might have been, other consequences 
would probably have resulted of too serious a nature, not to be 
provided against. The new constitution has, accordingly, Avith 
great propriety, made provision against them, and all others pro- 
ceeding from the defect of the confederation on this head, by 
authorizing the general government to establish an unifonn rule 
of naturalization throughout the United States." 

Throughout this whole quotation Mr. Madison obviously takes 
it for granted that the word " free" is used in the articles of con- 
federation, as the correlative of aliens. And in this respect he no 
doubt correctly represents the meaning then given to the word by 
the people of the United States. And in the closing sentence of 
the quotation, he virtually asserts that such is the meaning of the 
word " free" in " the new constitution." 



CHAPTER VIII. 

THE CONSTITUTION OP THE UNITED STATES. 

We come now to the period commencing with the adoption of 
the constitution of the United States. 

We have already seen that slavery had not been authorized or 
established by any of the fundamental constitutions or charters 
that had existed previous to this time ; that it had always been a 
mere abuse sustained by the common consent of the strongest 
party, in defiance cf the avowed constitutional principles of thcil 



THE CONSTITUTION OF THE- UNITED STATES. 55 

governments. And the question now is, whether it was constitu- 
tionally established, authorized or sanctioned by the constitution 
of the United States ? 

It is perfectly clear, in the first place, that the constitution of 
the United States did not, of itself, create or establish slavery as a 
new institution ; or even give any authority to the state govern- 
ments to establish it as a new institution. — The greatest sticklers 
for slav^ery do not claim this. The most they claim is, that it 
recognized it as an institution already legally existing, under the 
authority of the State governments ; and that it virtually guaran- 
tied to the States the right of continuing it in existence during 
their pleasure. And this is really the only question arising out 
of the constitution of the United States on this subject, viz., 
whether it did thus recognize and sanction slavery as an existing 
institution ? 

This question is, in reality, answered in the negative by w^hat 
has already been shown ; for if slavery had no constitutional exist- 
ence, under the State constitutions, prior to the adoption of the 
constitution of the United States, then it is absolutely certain that 
the constitution of the United States did 7iot recognize it as a con- 
stitutional institution ; for it cannot, of course, be pretended that 
the Uniied States constitution recognized, as constitutional, any 
State institution that did not constitutionally exist. 

Even if the constitution of the United States had intended to re- 
cognize slavery, as a constitutional State institution, such intended 
recognition would have failed of effect, and been legally void, be- 
cause slavery then had no coiistitutibnal existence to be recognized. 

Suppose, for an illustration of this principle, that the constitu- 
tion of the United States had, by implication, plainly taken it for 
granted that the State legislatures had power — derived from the 
State constitutions — to order arbitrarily that infant children, or 
that men without the charge of crime, should be maimed — 
deprived, for instance, of a hand, a foot, or an eye. This intended 
recognition, on the part of the constitution of the United States, 
of the legality of such a practice, would obviously have failed of 
all legal effect — would have been mere surplusage — if it should 
appear, from an examination of the State constitutions themselves, 
that they had really conferred no such power upon the legis- 
latures. And this principle applies with the same force to laws 
that would arbitrarily make men or children slaves, as to laws 
that should arbitrarily order them to be maimed or murdered. 



56 THE UNCONSTITTJTIONALITY OF SLAVERY. 

We might here safely rest the whole question — for no one, as 
has already been said, pretends that the constitution of the United 
States, by its own authority, created or authorized slavery as a 
new institution ; but only that it intended to recognize it as one 
already established by authority of the State constitutions. This 
intended recognition — if there were any such — being founded on 
an error as to what the State constitutions really did authorize, 
necessarily falls to the ground, a defunct intention. 

We make a stand, then, at this point, and insist that the main 
question — the only material question — is already decided against 
slavery ; and that it is of no consequence what recognition or 
sanction the constitution of the United States may have intended 
to extend to it. 

The constitution of the United States, at its adoption, certainly 
took effect upon, and made citizens of all " the people of the 
United States," who were 7iot slaves under the State constitutions. 
No one can deny a proposition so self-evident as that. If, then, 
the State constitutions, then existing, authorized no slavery at all, 
the constitution of the United States took effect upon, and made 
citizens of all " the people of the United States," without discrimi- 
nation. And if all " the people of the United States " were made 
citizens of the United States, by the United States constitution, at 
its adoption, it was then forever too late for the State governments 
to reduce any of them to slavery. They were thenceforth citi- 
zens of a higher government, under a constitution that was " the 
supreme law of the land," " anything in the constitution or laws 
of the States to the contrary notwithstanding." If the State gov- 
ernments could enslave citizens of the United States, the State 
constitutions, and not the constitution of the United States, would 
be the "supreme law of the land" — for no higher act of 
supremacy could be exercised by one government over another, 
ihan that of taking the citizens of the latter out of the protection 
of their government, and reducing them to slavery. 



SECONDLY. 

Although we might stop — we yet do not choose to stop — at 
the point last suggested. We will now go further, and attempt to 
show, specifically from its provisions, that the constitution of the 
United States, not only does not recognize or sanction slavery, as 
a legal institution, but that, on the contrary, it presumes all men 



THE CONSTITUTION OF THE UNITED STATES. 57 

to be free ; that it positively denies the right of property in man ; 
and that it, of itself, makes it impossible for slavery to have a 
legal existence in any of the United States. 

In the first place — although the assertion is constantly made, 
and rarely denied, yet it is palpably a mere begging of the whole 
question in favor of slavery, to say that the constitution intended to 
sanction it ; for if it intended to sanction it, it did thereby neces- 
sarily sanction it, (that is, if slavery then had any constitutional 
existence to be sanctioned.) The inte7itions of the constitution 
are the only means whereby it sanctions anything. And its 
intentions necessarily sanction everything to which they apply, 
and which, in the nature of things, they are competent to sanc- 
tion. To say, therefore, that the constitution intended to sanction 
slavery, is the same as to say that it did sanction it ; which is 
begging the whole question, and substituting mere assertion for 
proof. 

Why, then, do not men say distinctly, that the constitution did 
sanction slavery, instead of saying that it intended to sanction it ? 
We are not accustomed to use the word " intention.,'''' when speak- 
ing of the other grants and sanctions of the constitution. We do 
not say, for example, t^at the constitution intended to authorize 
congress " to coin money," but that it did authorize them to coin 
it. Nor do we say that it intended to authorize them " to declare 
war ;" but that it did authorize them to declare it. It would be 
silly and childish to say merely that it intended to authorize them 
" to coin money," and " to declare war," when the language 
authorizing them to do so, is full, explicit and positive. Why, 
then, in the case of slavery, do men say merely that the constitu- 
tion intended to sanction it, instead of saying distinctly, as we do 
in the other cases, that it did sanction it ? The reason is obvious. 
If they were to say unequivocally that it did sanction it, they 
would lay themselves under the necessity of pointing to the words 
that sanction it ; and they are aware that the loords alone of the 
constitution do not come up to that point. They, therefore, assert 
simply that the constitution intended to sanction it ; and they then 
attempt to support the assertion by quoting certain words and 
phrases, which they say are capable of covering, or rather of con- 
cealing such an intention ; and then by the aid of exterior, circum- 
stantial and historical evidence, they attempt to enforce upon the 
mind the conclusion that, as matter of fact, such was the intention 



68 THE UNCONSTITUTIONALITY OF SLAVERY. 

of those who drafted the constitution ; and thence they finally 
infer that such was the intention of the constitution itself. 

The error and fraud of this whole procedure — and it is one 
purely of error and fraud — consists in this — that it artfully sub- 
stitutes the supposed intentions of those who drafted the constitu- 
tion, for the intentions of the constitution itself; and, secondly, it 
personifies the constitution as a crafty individual ; capable of both 
open and secret intentions ; capable of legally participating in, and 
giving effect to all the subtleties and double dealings of knavish 
men ; and as actually intending to secure slavery, while openly 
professing to " secure and establish liberty and justice." It per- 
sonifies the constitution as an individual capable of having private 
and criminal intentions, which it dare not distinctly avow, but only 
darkly hint at, by the use of words of an indefinite, uncertain and 
double meaning, whose application is to be gathered from external 
circumstances. 

The falsehood of all these imaginings is apparent, the moment 
it "s considered that the constitution is not a person, of whom an 
" mtention," not legally expressed, can be asserted ; that it has 
none of the various and selfish passions and motives of action, 
which sometimes prompt ??ie)i to the practice of duplicity and dis- 
guise ; that it is merely a written legal instrument ; that, as such, 
it must have a fixed, and not a double meaning; that it is made up 
entirely of intelligible words ; and that it has, and cayi have, no 
soul, no " intentio7is" no motives, no being, no personality, except 
what those words alone express or imply. Its " intentions" are 
nothing more nor less than the legal meaning of its words: Its 
intentions are no guide to its legal meaning — as the advocates of 
slavery all assume ; but its legal meaning is the sole guide to its 
intentions. This distinction is all important to be observed ; for if 
we can gratuitously assume the intentions of a legal instrument to 
be what we may wish them to be, and can then strain or pervert 
the ordinary meaning of its words, in order to make them utter 
those intentions, we can make anything we choose of any legal 
instrument whatever. The legal meaning of the words of an in- 
strument is, therefore, necessarily our only guide to its intentions. 

In ascertaining the legal meaning of the words of the constitu- 
tion, these rules of law, (the reasons of which will be more fully 
explained hereafter,) are vital to be borne constantly in mind, viz. : 
1st, that no intention, in violation of natural justice and natural 
right, (like that to sanction slavery,) can be ascribed to the consti- 



THE CONSTITUTION OF THE UNITED STATES. 59 

tution, unless that intention be expressed in terms that are legally 
competent to express such an intention ; and, 2d, that no terms, 
except those that are plenary, express, explicit, distinct, unequivo- 
cal, and to which no other meaning can be given, are legally com- 
petent to authorize or sanction anything contrary to natural right. 
The rule of law is materially different as to the terms necessary to 
legalize and sanction anything contrary to natural right, and those 
necessary to legalize things that are consistent with natural right. 
The latter maybe sanctioned by natural implication and inference ; 
the former only by inevitable implication, or by language that is 
full, definite, express, explicit, unequivocal, and whose z<n«i'oic?a3?e 
import is to sanction the spenjic wrong intended. 

To assert, therefore, that the constitution intended to sanction 
slavery, is, in reality, equivalent to asserting that the necessary 
meaning, the unavoidable import of the words alone of the consti- 
tution, come fully up to the point of a clear, definite, distinct, ex- 
press, explicit, unequivocal, necessary and peremptory sanction of 
the specific thing, human slavery^ property in man. If the neces' 
sary import of its words alone do but fall an iota short of this point, 
the instrument gives, and, legally speaking, intended to give, no 
legal sanction to slavery. Now, who can, in good faith, say that 
the words alone of the constitution come up to this point ? No 
one, who knows anything of law, and the meaning of words. Not 
even the name of the thing, alleged to be sanctioned, is given. 
The constitution itself contains no designation, description, or 
necessary .admission of the existence of such a thing as slavery, 
servitude, or the right of property in man. We are obliged to go 
out of the instrument, and grope among the records of oppression 
lawlessness and crime — records unmentioned, and of course un- 
sanctioned by the constitution — to find the thing, to which it is 
said that the words of the constitution apply. And when we have 
found this thing, which the constitution dare not name, we find 
that the constitution has sanctioned it (if at all) only by enigmati- 
cal words, by unnecessary implication and inference, by innuendu 
and double entendre, and under a name that entirely fails of describ- 
ing the thing. Everybody must admit that the constitution itself 
contains no language, from which alo)ie any court, that were either 
strangers to the prior existence of slavery, or that did not assume 
its prior existence to be legal, could legally decide that the consti- 
tution sanctioned it. And this is the true test for determining 
whether the cons^titution does, or does not, sanction slavery, viz.. 



60 THE UNCONSTITUTIONALITY OF SLAVERV. 

whether a court of law, strangers to the prior existence of slavery 
or not assuming its prior existence to be legal — looking only at 
the naked language of the instrument — could, consistently with 
legal rules, judicially determine that it sanctioned slavery. Every 
lawyer, who at all deserves that name, knows that the claim for 
slavery could stand no such test. The fact is palpable, that the 
constitution contains no such legal sanction ; that it is only by un- 
necessary implication and inference, by innuendo and double-en- 
tendre, by the aid of exterior evidence, the assumption of the prior 
legality of slavery, and the gratuitous imputation of criminal in- 
tentions that are not avowed in legal terms, that any sanction of 
slavery, (as a legal institution,) can be extorted from it. 

But legal rules of interpretation entirely forbid and disallow all 
such implications, inferences, innuendos and double-entendre, all 
aid of exterior evidence, all assumptions of the prior legality of 
slaA'ery, and all gratuitous imputations of criminal unexpressed 
intentions ; and consequently compel us to come back to the letter 
of the instrument, and find there a distinct, clear, necessary, per- 
emptory sanction for slavery, or to surrender the point. 

To the unprofessional reader these rules of interpretation will 
appear stringent, and perhaps unreasonable and unsound. For his 
benefit, therefore, the reasons on which they are founded, will be 
given. And he is requested to fix both the reasons and the rules 
fully in his mind, inasmuch as the whole legal meaning of the 
constitution, in regard to slavery, may perhaps be found to turn 
upon the construction which these rules fix upon its language. 

But before giving the reasons of this rule, let us oflTer a few re- 
marks in regard to legal rules of interpretation in general. Many 
persons appear to have the idea that these rules have no foundation 
in reason, justice or necessity ; that they are little else than whim- 
sical and absurd conceits, arbitrarily adopted by the courts. No idea 
can be more erroneous than this. The rules are absolutely indis- 
pensable to the administration of the justice arising out of any class 
of legal instruments whatever — whether the instruments be simple 
contracts between man and man, or statutes enacted by legislatures, 
or fundamental compacts or constitutions of government agreed 
upon by the people at large. In regard to all these instruments, 
the law fixes, and necessarily must fix their meaning ; and for the 
obvious reason, that otherwise their meaning could not be fixed at 
all. The parties to the simplest contract may disagree, or pretend 
to disagree as to its meaning, and of course as to their respective 



THE CONSTITUTION OF THE UNITED STATES. 61 

rights under it. The different members of a legislative body, who 
vote for a particular statute, may have different intentions in voting 
'or it, and may therefore differ, or pretend to differ, as to its mean- 
nig. The people of a nation may establish a compact of govern- 
ment. The motives of one portion may be to establish liberty, 
equality and justice ; and they may think, or pretend to think, that 
the words used in the instrument convey that idea. The motives 
of another portion may be to establish the slavery or subordination 
of one part of the people, and the superiority or arbitrary power of 
the other part; and they may think, or pretend to think, that the 
language agreed upon by the whole authorizes such a government. 
In all these cases, unless there were some rules of law, applicable 
alike to all instruments, and competent to settle their meaning, 
their meaning could not be settled ; and individuals would of 
necessity lose their rights under them. The law, therefore, Jixes 
their meaning ; and the rules by which it does so, are founded 
in the same justice, reason, necessity and truth, as are other legal 
principles, and are for that reason as inflexible as any other legal 
principles whatever. They are also simple, intelligible, natural, 
obvious. Everybody are presumed to know them, as they are pre- 
sumed to know any other legal principles. No one is allowed to 
plead ignorance of them, any more than of any other principle of 
law. All persons and people are presumed to have framed their 
contracts, statutes and constitutions with reference to them. And 
if they have not done so — if they have said black when they 
meant white, and one thing when they meant another, they must 
abide the consequences. The law will presume that they meant 
what they said. No one, in a court of justice, can claim any rights 
founded on a construction different from that which these rules 
would give to the contract, statute, or constitution, under which he 
claims. The judiciary cannot depart from these rules, for two 
reasons. First, because the rules embody in themselves principles 
of justice, reason and truth ; and are therefore as necessarily law 
as any other principles of justice, reason and truth ; and, secondly, 
because if they could lawfully depart from them in one case, they 
might in another, at their own caprice. Courts could thus at plea- 
sure become despotic ; all certainty as to the legal meaning of 
instruments would be destroyed; and the administration of justice, 
according to the true meaning of contracts, statutes and constitu- 
tions, would be rendered impossible. 

What, then, are some of these rules of interpretation ' 
6 



62 THE UNCONSTITUTIONALITY OF SLAVERY. 

One of them, (as has been before stated,) is, that where worcJa 
are susceptible of two meanings, one consistent, and the other 
inconsistent, with justice and natural right, that meanmg, and 
only that meaning, which is consistent with right, shall be 
attributed to them — unless other parts of the instrument overrule 
that interpretation. 

Another rule, (if indeed it be not the same,) is, that no language 
except that which is peremptory, and no implication, except one 
that is inevitable, shall be held to authorize or sanction anything 
contrary to natural right. 

Another rule is, that no extraneotis or historical eindence shall 
be admitted to fix upon a statute an unjust or immoral meaning, 
when the words themselves of the act are susceptible of an 
innocent one. 

One of the reasons of these stringent and inflexible rules, doubt- 
less is, that judges have always known, that, in point of fact, 
natural justice was itself law, and that nothing inconsistent with 
it could be made law^, even by the most explicit and peremptory 
language that legislatures could employ. But judges have always, 
in this country and in England, been dependent upon the execu- 
tive and the legislature for their appointments and salaries, and 
been amenable to the legislature by impeachment. And as the 
executive and legislature have always enacted more or less 
statutes, and had more or less purposes to accomplish, that were 
inconsistent with natural right, judges have seen that it would be 
impossible for them to retain their offices, and at the same time 
maintain the integrity of the law against the will of those in whosp 
power they were. It is natural also that the executive should ap- 
point, and that the legislature should approve the appointment of 
no one for the office of judge, whose integrity they should sup- 
pose would stand in the way of their purposes. The consequence 
has been that all judges, (probably without exception,) though they 
have not dared deny, have yet in practice yielded the vital 
principle of law ; and have succumbed to the arbitrary mandates 
of the other departments of the government, so far as to carry out 
their enactments, though inconsistent with natural right. But, as 
if sensible of the degradation and criminality of so doing, they 
have made a stand at the first point at which they could make it, 
without bringing themselves in direct collision with those on whom 
they were dependent. And that point is, that they will administer, 
as law, no statute, that is contrary to natural right, unless its Ian- 



THE CONSTITUTION OF THE UNITED STATES. 63 

guage be so explicit and peremptory, that there is no way of evaa- 
ing its authority, but by flatly denying the authority of those who 
enacted it. They (the court) will themselves add nothing to the 
language of the statute, to help out its supposed meaning. They 
will imply nothing, infer nothing, and assurhe nothing, except 
what is inevitable ; they will not go out of the letter of the statute 
in search of any historical evidence as to the meaning of the 
legislature, to enable them to effectuate any jinjust intentions not 
fully expressed bv the statute itself. Wherever a statute is sup- 
posed to have in view the accomplishment of any unjust end, they 
v/ill apply the most stringent principles of construction to prevent 
that object being effected. They will not go a hair's breadth 
beyond the literal or inevitable import of the words of the statute, 
even though they should be conscious, all the while, that the real 
intentions of the makers of it would be entirely defeated by their 
refusal. The rule (as has been already stated) is laid down by 
the Supreme Court of the United States in these words : 

" Where rights are infringed, where fundamental principles are 
overthrown, where the general system of thelaAvsis departed from, 
the legislative intention must be expressed with irresistible clear- 
ness, to induce a court of justice to suppose a design to effect 
such objects." — {United States vs. Fisher et al., 2 Cranch, 
390.)* 

Such has become the settled doctrine of courts. And although 
it does not come up to the true standard of law, yet it is good in 
itself, so far as it goes, and ought to be unflinchingly adhered to, 
not merely for its own sake, but also as a scaffolding, from which 
to erect that higher standard of law, to wit, that no language or 
authority whatever can legalize anything inconsistent with natural 
justice.! 

* This language of the Supreme Court contains an admission of the truth of the 
charge just made against judges, viz., that rather than lose their offices, they will 
■violate what they know to be law, in subserviency to the legislatures on whom 
they depend ; for it admits, 1st, that the preservation of men's rights is the vital 
principle of law, and, 2d, that courts (and the Supreme Court of the United States 
in particular) will trample upon that principle at the bidding of the legislature, 
when the mandate comes in the shape of a statute of such " irresistible clearness," 
that its meaning cannot be evaded. 

t " Laws are construed strictly to save a right." — Whitney et al. vs. Emmeti 
et al., 1 Baldwin, C. C. R. 316. 

" No law will make a construction to do wrong ; and there are some things wbicb 
the law favors, »ud some it dislikes ; it favoreth those tilings that come from the 
order of nature. — Jacob'' s Law Dictionary, title Lau. 



64 THE UNCONSTITUTIONALITY OF SLAVERY. 

Another reason for the rules before given, against all construe 
tions, implications and inferences — except inevitable ones — iv 
favor of injustice, is, that but for them we should have no guaranty 
that our honest contracts, or honest laws would be honestly 
administered by the judiciary. It would be nearly or quite 
impossible for men, in framing their contracts or laws, to use lan- 
guage so as to exclude every possible implication in favor of 
wrong, if courts were allowed to resort to such implications. The 
laiv therefore excludes them; that is, the ends of justice — the 
security of men's rights under their honest contracts, and under 
honest legislative enactments — make it imperative upon courts of 
justice to ascribe an innocent and honest meaning to all language 
that will possibly bear an innocent and honest meaning. If courts 
of justice could depart from this rule for the purpose of upholding 
what was contrary to natural right, and should employ their inge- 
nuity in spying out some implied or inferred authority, for 
sanctioning v/hat was in itself dishonest or unjust, when such was 
not the necessary meaning of the language used, there could be 
no security whatever for the honest administration of honest laws. 
or the honest fulfilment of men's honest contracts. Nearly all 
language, on the meaning of which courts adjudicate, would 
be liable, at the caprice of the court, to be perverted from 
the furtherance of honest, to the support of dishonest purposes. 
Judges could construe statutes and contracts in favor of justice or 
injustice, as their own pleasure might dictate. 

Another reason of the rules, is, that as governments have, and can 
have no legitimate objects or powers opposed to justice and natural 
right, it would be treason to all the legitimate purposes of govern- 
ment, for the judiciary to give any other than an honest and inno- 
cent meaning to any language, that would bear such a construction. 

The same reasons that forbid the allowance of any unnecessary 
implication or inference in favor of a wrong, in the construction of 
a statute, forbids also the introduction of any extraneous or histori- 
cal evidence to prove that the intentions of the legislature were to 
sanction or authorize a wrong. 

The same rules of construction, that apply to statutes, apply 
also to all those private contracts between man and man, ivhich 
courts actually enforce. But as it is both the right and the duty 
of courts to invalidate altogether such private contracts as are 
inconsistent with justice, they will admit evidence exterior to their 
words, if offered by a defendant for the purpose of invalidating 



THE CONSTITUTION OF THE UNITED STATES. 65 

them. At the same time, a plaintiff, or party that wishes to set 
up a contract, or that claims its fultilment, will not be allowed to 
offer any evidence exterior to its words, to prove that the contract 
is contrary to justice — because, if his evidence were admitted, it 
would not make his unjust claim a legal one ; but only invalidate 
it altogether. But as courts do not claim the right of invalidating 
statutes and constitutions, they will not admit evidence, exterior 
to their language, to give them such a meaning, that they ought 
to be invalidated. 

I think no one — no lawyer, certainly — will now deny that it 
is a legal rule of interpretation — that must be applied to all 
statutes, and also to all private contracts that are to be enforced — 
that an innocent meaning, and nothing beyond an innocent mean- 
ing, must be given to all language that will possibly bear such a 
meaning. All will probably admit that the rule, as laid down by 
the Supreme Court of the United States, is correct, to wit, that 
" where rights are infringed, where fundamental principles are 
overthrown, where the general system of the law is departed from, 
the legislative intention must be expressed with irresistible clear- 
ness, to induce a court of justice to suppose a design to effect such 
objects." 

But perhaps it will be said that these rules, which apply to all 
statutes, and to all private contracts that are to be enforced, do not 
apply to the constitution. And why do they not ? No reason 
whatever can be given. A constitution is nothing but a contract, 
entered into by the mass of the people, instead of a few individuals. 
This contract of the people at large becomes a law unto the judi- 
ciary that administer it, just as private contracts, (so far as they 
are consistent with natural right,) are laws unto the tribunals 
that adjudicate upon them. All the essential principles that enter 
into the question of obligation, in the case of a private contract, or 
a legislative enactment, enter equally into the question of the 
obligation of a contract agreed to by the whole mass of the people. 
This is too self-evident to need illustration. 

Besides, is it not as important to the safety and rights of all 
interested, that a constitution or compact of government, established 
by a whole people, should be so construed as to promote the 
ends of justice, as it is that a private contract or a learislative enact- 
ment should be thus construed ? Is it -not as necessary thai 
some check should be imposed upon the judiciary to prevent iJiem 
from perverting, at pleasure, the whole purpose and character of 
6^ 



66 THE UNCONSTITUTIONALITY OF SLAVERY. 

the government, as it is that they should be restrained fiom per- 
verting the meaning of a private contract, or a legislative enact- 
ment ? Obviously written compacts of government could not be 
upheld for a day, if it were understood by the mass of the people 
that the judiciary were at liberty to interpret them according to 
their ov^rn pleasure, instead of their being restrained by such rules 
as have now been laid down. 

Let us now look at some of the provisions of the constitution, 
and see what crimes might be held to be authorized by them, if 
their meaning were not to be ascertained and restricted by such 
rules of interpretation as apply to all other legal instruments. 

The second amendment to the constitution declares that " the 
right of the people to keep and bear arms shall not be infringed." 

This right " to keep and bear arms," implies the right to use" 
them — as much as a provision securing to the people the right to 
buy and keep food, would imply their right also to eat it. But this 
implied right to use arms, is only a right to use them in a manner 
consistent with natural rights — as, for example, in defence of life, 
liberty, chastity, &c. Here is an innocent and just meaning, of 
which the words are susceptible ; and such is therefore the extent 
of their legal meaning. If the courts could go beyond the inno- 
cent and necessary meaning of the words, and imply or infer from 
them an authority for anything contrary to natural right, they 
could imply a constitutional authority in the people to use arms, 
not merely for the just and innocent purposes of defence, but also 
for the criminal purposes of aggression — for purposes of murder, 
robbery, or any other acts of wrong to which arms are capable of 
being applied. The mere verbal implication would as much 
authorize the people to use arms for unjust, as for just, purposes. 
But the legal implication gives only an authority for their mno- 
cent use. And why? Simply because justice is the end of aU 
law — the legitimate end of all compacts of government. It ia 
itself law ; and there is no right or power among men to destroy 
its obligation. 

Take another case. The constitution declares that "Congress 
ehall have power to regulate commerce with foreign nations, and 
among the several States, and with the Indian tribes." 

This power has been held by the Supreme Court to be an exclu- 
sive one in the general government — and one that cannot be 
controlled by the States. Yet it gives Congress no constitutional 
authority to legalize any commerce inconsistent with natural 



THE CONSTITUTION OF THE UNITED STATES. 67 

justice between man and man ; although the mere verbal import 
of the words, if stretched to their utmost tension in favor of tlip 
wrong, would authorize Congress to legalize a commerce in 
poisons and deadly weapons, for the express purpose of having 
them used in a manner inconsistent with natural right — as for 
the purposes of murder. 

At natural law, and on principles of natural right, a person, 
who should sell to another a weapon or a poison, knowing that it 
would, or intending that it should be used for the purpose 
of murder, would be legally an accessary to the murder thai 
sliould be committed with it. And if the grant to Congress of a 
" power to regulate commerce," can be stretched beyond the 
hmocent meaning of the words — beyond the power of regulating 
and authorizing a commerce that is consistent with natural 
justice — and be made to cover everything, intrinsically criminal, 
that can be perpetrated under the name of commerce — then Con- 
gress have the authority of the constitution for granting to individ- 
uals the liberty of bringing weapons and poisons from " foreign 
nations " into this, and from one State into another, and selling 
them openly for the express purposes of murder, without any 
liability to legal restraint or punishment. 

Can any stronger cases than these be required to prove the 
necessity, the soundness, and the inflexibility of that rule of law, 
which requires the judiciary to ascribe an innocent meaning to all 
language that will possibly bear an innocent meaning? and to 
ascribe only an innocent meaning to language whose mere verbal 
import might be susceptible of both an innocent and criminal 
meaning ? If this rule of interpretation could be departed from, 
there is hardly a power granted to Congress, that might not laio- 
fully be perverted into an authority for legalizing crimes of the 
highest grade. 

In the light of these principles, then, let us examine those 
clavises of the constitution, that are relied on as recognizing and 
sanctioning slavery. They are but three in number. 

The one most frequently quoted is the third clause of Art. 4, 
Sec. 2, in these words : 

" No person, held to service or labor in one State, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or 
\abor ; but shall be delivered up on claim of the party to whom 
such service or labor mav be due." 



68 THE UNCONSTITUTIONALITY OF SLAVERY. 

There are several reasons why this clause renders no sanction 
to slavery. 

1. It mufjt be construed, if possible, as sanctioning nothing 
contrary to natural right. 

If there be any "service or labor" whatever, to which any 
" persons " whatever may be " held," consistently with natural 
right, and which any person may, consistently with natural right, ^ 
'•'^ claim'" as his '■'■ due^' of another, such "service or labor," and i 
only such, is recognized and sanctioned by this provision. 

It needs no argument to determine whether the " service or ! 
labor," that is exacted of a slave, is such as can be " claimed,^ 
consistently loith natural right, as being ^'^ due" from him to his ( 
master. And if it cannot be, some other " service or labor" must, 
if possible, be found for this clause to apply to. 

The proper definition of the word " service," in this case, obvi- 
ously is, the labor of a servant. And we find, that at and before 
the adoption of the constitution, the persons recognized by the 
State laws as " servants," constituted a numerous class. The 
statute books of the States abounded with statutes in regard to 
" servants." Many seem to have been indented as servants by the 
public authorities, on account of their being supposed incompetent, 
by reason of j^outh and poverty, to provide for themselves. Many 
were doubtless indented as apprentices by their parents and 
guardians, as now. The English laws recognized a class of ser- 
vants — and many persons were brought here from England, in 
that character, and retained that character afterward. Many 
indented or contracted themselves as servants for the payment of 
their passage money to this country. In these various ways, 
the class of persons, recognized by the statute books of the States 
as " servants," was very numerous ; and formed a prominent sub- 
ject of legislation. Indeed, no other evidence of their number is 
necessary than the single fact, that " persons bound to service for 
a term of years," were specially noticed by the constitution of the 
United States, (Art. 1, Sec. 2,) which requires that they be 
counted as units in making up the basis of representation. 
There is, therefore, not the slightest apology for pretending that 
there was not a sufficient class for the words " service or labor " to 
refer to, without supposing the existence of slaves. * 

* In the convention that framed tlie constitution, when thi5 clause was under 
discussion, "servants" were spoken of as a distinct class from "slaves." For 
instance, " Mr. Butler and Mr. Pickney moved to require • fugitive slaves and ser 



THE CONSTITUTION OF THE UNITED STATES. 69 

2. " Held to service or labor,'''' is no legal description of slavery- 
Slavery i.-i property in man. It is not necessarily attended with 
either " service or labor." A very considerable portion of the 
slaves are either too young, too old, too sick, or too refractory to 
render " service or labor." As a matter of fact, slaves, who are 
able to labor, may, in general, be compelled by their masters to do 
so. Yet labor is not an essential or necessary condition of slavery. 
The essence of slavery consists in a person's being owned as 
property — without any reference to the circumstances of his being 
compelled to labor, or of his being permitted to live in idleness, or 
of his being too young, or too old, or too sick to labor. 

If " service or labor " were either a test, or a necessar3r atten- 
dant of slavery, that test would of itself abolish slavery ; because 
all slaves, before they can render " service or labor," must have 
passed through the period of infancy, when they could render 
neither service nor labor, and when, therefore, according to this 
test, they were free. And if they were free in infancy, they could 
not be subsequently enslaved. 

3. " Held to service or labor in one State, under the laivs 
thereof.'''' 

The " ^a70s"take no note of the fact whether a slave " labors," 
or not. They recognize no obligation, on his part, to labor. 
They will enforce no " claim " of a master, upon his slave, for 
"service or labor." If the slave refuse to labor, the law will not 
interfere to compel him. The law simply recognizes the master's 
right of property in the slave — just as it recognizes his right of 
property in a horse. Having done that, it leaves the master to 
compel the slave, if he please, and if he can — as he would 
compel a horse — -to labor. If the master do not please, or be 
not able, to compel the slave to labor, the law takes no more cog- 
nizance of the case than it does of the conduct of a refractory horse. 

vants to bo delivered up like criminals.' " Mr. Sherman olijected to delivering up 
cither slaves or servants. He said he " saw no more propriety in the public seizing 
and surrendering a slave or seri^ant, than a horse." — Madison Papers, p. 1447 - 8 

The language finally adopted shows that they at last agreed to deliver up " ser- 
vants," but not " slaves " — for as the word " servant" does not mean ' slave," th' 
word " service" does not mean slavery. 

These remarks in the convention are quoted, not because tne intentions of the 
convention are of the least legal consequence whatever ; but to rebut the silly ar- 
guments of those who pretend that the convention, and not the people, adopted tht 
constitution — and that the convention did not understand the legal difference be- 
tween the word "servant" and " slave," and therefore used the word "service ' 
in this clause, as meaning slavery. 



70 THE XJNCONSTITUTIONALITY OF SLAVERY. 

In short, it recognizes no obligation, on the part of the slave, lo 
labor, if he can avoid doing so. It recognizes no " claim,''^ on t^.e 
part of the master, upon his slave, for " services or labor," as 
" due^'' from the latter to the former. 

4. Neither "service" nor "labor" is necessarily slaver}' ; and 
not being necessarily slavery, the words cannot, in this case, be 
strained beyond their necessary meaning, to make them sanction 
a wrong. The law will not allow words to be strained a hair's 
breadth beyond their necessary meaning, to make them authorize a 
wrong. The stretching, if there be amj, must always he toioards 
the right. The words " service or labor" do not necessarily, nor 
in their common acceptation, so much as suggest the idea of 
slavery — that is, they do not suggest the idea of the laborer or 
servant being the property of the person for whom he labors. An 
indented apprentice serves and labors for another. He is '■'■held" 
to do so, under a contract, and for a consideration, that are recog- 
nized, by the laws, as legitimate, and consistent with natural right. 
Yet he is not owned as property. A condemned criminal is 
"held to labor" — yet he is not OAvned as property. The law 
allows no such straining of the meaning of words towards the 
wrong, as that which would convert the words " service or labor" 
(of men) into property in man — and thus make a man, who 
serves or labors for another, the property of that other. 

5. " No person held to service or labor, in one State, under the 
laws thereof." 

The " laws" here mentioned, and impliedly sanctioned, are, of 
course, only constitutional laws — laws, that are consistent, both 
with the constitution of the State, and the constitution of the 
United States. None others are " laws," correctly speaking, how- 
ever they may attempt to " hold persons to service or labor," or 
however they may have the forms of laws on the statute books. 

This word " laws," therefore, being a m.aterial word, leaves the 
whole question just where it found it — for it certainly does not, 
of itself — nor indeed does any other part of the clause — say that 
an act of a legislature, declaring one man to be the property of 
another, is a"la7v" within the meaning of the constitution. As 
far as the word " laws" saj's anything on the subject, it says that 
such acts are not laws — for such acts are clearly inconsistent 
with natural law — and it yet remains to be shown that they 
are consistent with any constitution whatever, state or national. 

The burden of proof, then, still rests upon the advocates of 



THE CONSTITUTION OF THE UNITED STATES. 71 

slavery, to show that an act of a State legislature, declaring one 
man to be the oroperty of another, is a " law," within the meaning 
of this clause. To assert simply that it is, without proving it to 
be so, is a mere begging of the question — for that is the very 
point in dispute. 

The question, therefore, of the constitutio?iality of the slave 
acts must first be determined, before it can be decided that they 
are " laws " within the meaning of the constitution. That is, they 
must be shown to be consistent with the constitution, before they 
can be said to be sanctioned as " laws" by the constitution. Can 
any proposition be plainer than this ? And yet the reverse must 
be assumed, in this case, by the advocates of slavery. 

The simple fact, that an act purports to " hold persons to 
service or labor," clearly cannot, of itself, make the act constitu- 
tional. If it could, any act, purporting to hold " persons to service 
or labor," would necessarily be constitutional, without any regard 
to the "persons" so held, or the conditions on which they were 
held. It would be constitutional, solely because it pinyorted to 
hold persons to service or labor. If this were the true doctrine, 
any of us, without respect of persons, might be held to service or 
labor, at the pleasure of the legislature. And then, if " service 
or labor" mean slavery, it would follow that any of us, without 
discrimination, might be made slaves. And thus the result woukl 
be, that the acts of a legislature would be constitutional, solely 
because they made slaves of the people. Certainly this would be a 
new test of the constitutionality of laws. 

All the arguments in favor of slavery, that have heretofore been 
drawn from this clause of the constitution, have been founded on 
the assumption, that if an act of a legislature did but purport to 
" hold persons to service or labor" — no matter how, on what con- 
ditions, or for what cause — that fact alone was sufficient to make 
the act constitutional. The entire sum of the argument, in favor 
of slavery, is but this, viz., the constitution recognizes the con- 
stitutionality of" laws" that " hold persons to service or labor," — 
slave acts " hold persons to service or labor," — therefore slave acts 
must be constitutional. This profound syllogism is the great pillar 
of slavery in this country. It has, (if we are to judge by results,) 
withstood the scrutiny of all the legal acumen of this nation for 
fifty years and more. If it should continue to withstand it for as 
many years as it has alreadv done, it will then be time to pro- 
pound the following, to wit: The State constitutions recognize the 



72 THE UNCONSTITUTIONALITY OF SLAVERY. 

right of men to acquire property ; theft, robbery, and murder are 
among the modes in which property may be acquired ; therefore 
theft, robbery, and murder are recognized by these constitutions as 
lawful. 

No doubt the clause contemplates that there may be constitu- 
tional " laws," under which persons may be " held to service or 
labor." But it does not follow, therefore, that every act, that pur- 
ports to hold " persons to service oi labor," is constitutional. 

We are obliged, then, to determine whether a statute be consti- 
tutional, before we can determine whether the " service or labor" 
required by it, is sanctioned by the constiiution as being lawfully 
required. The simple fact, that the statute would " hold persons 
to service or labor," is, of itself, no evidence, either for or against 
its constitutionality. Whether it be or be not constitutional, may 
depend upon a variety of contingencies — such as the kind of 
service or labor required, and the conditions on which it requires 
it. Any service or labor, that is inconsistent with the duties 
which the constitution requires of the people, is of course not 
sanctioned by this clause of the constitution as being lawfully 
required. Neither, of course, is the requirement of service or 
labor, on any conditions, that are inconsistent with ayiy rights that 
are secured to the people by the constituiian, sanctioned by the con- 
stitution as lawful. Slave laws, then, can obviously be held to be 
sanctioned by this clause of the constitution, only by gratuitously 
assuming, 1st, that the constitution neither confers any rights, nor 
imposes any duties upon the people of the United States, incon- 
sistent with their being made slaves ; and, 2d, that it sanctions the 
general principle of holding " persons to service or labor " arbitra- 
rily, without contract, without compensation, and without the charge 
of crime. If this be really the kind of constitution that has been in 
force since 1789, it is somewhat wonderful that there are so few 
slaves in the country. On the other hand, if the constitution be 
not of this kind, it is equally wonderful that we have any slaves 
at all — for the instrument offers no ground for saying that a 
colored man may be made a slave, and a white man not. 

Again. Slave acts were not " laws " according to any State 
constitution that was in existence at the time the constitution of 
the United States was adopted. And if they were not " laws " a 
that time, they have not been made so since. 

6. The constitution itself, (Art. 1. Sec. 2.) in fixing the basis of 
representation, has plainly denied that those described m Art 4 



THE CONSTITUTION OF THE UNITED STATES. 73 

as ' persons held to service or labor," are slaves, — for it declares 
that " persons bound to service for a term of years " shall be 
" included " in the " number oi free persons." There is no legal 
difference between being " bound to service," and being " held to 
service or labor." The addition, in the one instance, of the words 
" for a term of years," does not alter the case, for it does not appear 
that, in the other, they are " held to service or labor " beyond a 
fixed term — and, in the absence of evidence from the constitution 
itself, the presumption must be that they are not — because such 
a presumption saves the necessity of going out of the constitution 
to find the persons intended, and it is also more consistent with the 
prevalent municipal, and with natural law. 

And it makes no difference to this result, whether the word 
" free," in the first article, be used in the political sense common 
at that day, or as the correlative of slavery. In either case, the 
persons described as " free," could not be made slaves. 

7. The words "service or labor" cannot be made to include 
slavery, unless by reversing the legal principle, that the greater 
includes the less, and holding that the less includes the greater ; 
that the innocent includes the criminal ; that a sanction of what is 
right, includes a sanction of Avhat is wrong. 

Another clause relied on as a recognition of the constitutionality 
of slavery, is the following, (Art. 1, Sec. 2:) 

" Representatives and direct taxes shall be apportioned among 
the several States, which may be included within this Union, 
according to their respective numbers, which shall be determined 
by adding to the whole number of free persons, including those 
bound to service for a term of years, and excluding Indians not 
taxed, three fifths of all other persons." 

The argument claimed from this clause, in support of slavery, 
rests entirely upon the word " free," and the words " all other 
persons." Or rather, it rests entirely upon the meaning of the 
word " free," for the application of the words " all other persons " 
depends upon the meaning given to the word " free." The slave 
argument assumes, gratuitously, that the word " free " is used as the 
correlative of slavery, and thence it infers that the words " al. 
other persons," mean slaves. 

It is obvious that the word " free " affords no argument for 
slavery, unless a meaning correlative with slavery be arbitrarily 
given to it, for the very purpose of making the constitution sanc- 
tion or recognize slavery. Now it is very clear that no such 



74 THE UNCONSTITUTIONALITY OF SLAVERY. 

meaning can be given to the word, for such a purpose. The 
ordinary meaning of a word cannot be thus arbitrarily changed, 
for the sake of sanctioning a icrong. A choice of meaning would 
be perfectly allowable, and even obligatory, if made for the pur- 
pose of avoiding any such sanction; but it is entirely inadmissible 
for the purpose of giving it. The legal rules of interpretation, 
heretofore laid down, imperatively require this preference of the 
right, over the wrong, in all cases where a word is susceptible of 
different meanings. 

The English law had for centuries used the word " free " as 
describing persons possessing citizenship, or some other franchise 
or peculiar privilege — as distinguished from aliens, and persons 
not possessed of such franchise or privilege. This law, and this 
use of the word " free," as has already been shown, (Ch. 6,) had 
been adopted in this country from its first settlement. The 
colonial charters all (probably without an exception) recognized it. 
The colonial legislation generally, if not universally, recognized it. 
The State constitutions, in existence at the time the constitution of 
the United States was formed and adopted, used the word in this 
sense, a?id 7io other. The Articles of Confederation — the then 
existing national compact of union — used the word in this sense 
and no other. The sense is an appropriate one in itself; the most 
appropriate to, and consistent with, the whole character of the con- 
stitution, of any of which the word is susceptible. In fact, it is 
the only one that is either appropriate to, or consistent with, the 
other parts of the instrument. Why, then, is it not the legal 
meaning ? Manifestly it is the legal meaning. No reason what- 
ever can be given against it, except that, if such be its meaning, 
the constitution will not sanction slavery ! A very good reason — 
a perfectly unanswerable reason, in fact — in favor of this mean- 
ing ; but a very futile one against it. 

It is evident that the word " free " is not used as the correlative 
of slavery, because " Indians not taxed" are " excluded" from its 
application — yet they are not therefore slaves. 

Again. The word " free " cannot be presumed to be used as 
the correlative of slavery — because slavery then had no legal 
existence. The word must obviously be presumed to be used as 
the correlative of something that did legally exist, rather than of 
something that did not legally exist. If it were used as the cor- 
relative of something that did not legally exist, the words " all 
other persons" would have no legal application. Until, then, it 



THE CONSTITUTION OF THE UNITED STATES. 75 

be showm that slavery had a legal existence, authorized either by 
the United States constitution, or by the then existing State con- 
stitutions — a thing that cannot be shown — the word "free" 
certainly cannot be claimed to have been used as its correlative. 

But even if slavery had been authorized by the State constitu- 
tions, the word " free," in the United States constitution, could not 
have been claimed to have been used as its correlative, unless it 
had appeared that the United Slates constitution had itself pro- 
vided or suggested no correlative of the word " free ;" for it would 
obviously be absurd and inadmissible to go out of an instrument 
to find the intended correlative of one of its own words, when it 
had itself suggested one. This the constitution of the United 
States has done, in the persons of aliens. The power of naturali- 
zation is, by the constitution, taken from the States, and given 
exclusively to the United States. The constitution of the United 
States, therefore, necessarily supposes the existence of aliens — 
and thus furnishes the correlative sought for. It furnishes a class 
both for the word " free," and the words " all other persons," to 
apply to. And yet the slave argument contends that we must 
overlook these distinctions, necessarily growing out of the laws of 
the United States, and go out of the constitution of the United 
States to find the persons whom it describes as the " free," and 
" all other persons." And what makes the argument the more 
absurd is, that by going out of the instrument to the then existing 
State constitutions — the only instrumients to which we can go — 
we can find there no other persons for the words to apply to — no 
other classes answering to the description of the " free persons " 
and " all other persons," — than the very classes suggested by the 
United States constitution itself, to wit, citizens and aliens ; (for 
it has previously been shown that the then existing State con-titu- 
tioas recognized no such persons as slaves.) 

If Ave are obliged (as the slave argument claims we are) to go 
out of the constitution of the United States to find the class whom 
it describes as " all other persons" than " the free," we shall, for 
aught I see, be equally obliged to go out of it to find those whom 
it describes as the " free" — for " the free," and " all other per- 
sons" than "the free," must be presumed to be found described 
somewhere in the same instrument. If, then, we are obliged to 
go out of the constitution to find the persons described in it as 
' the free" and " all other persons," we are obliged to go out of it 
to ascertain Avho are the persons on whom it declares that the 



76 THE UNCONSTITUTIONALITY OF SLAVERY. 

representation of the g-overnment shall be based, and on whom, of 
course, the government is founded. And thus we should have 
the absurdity of a constitution that purports to authorize a govern- 
ment, yet leaves us to go in search of the people who are to be 
represented in it. Besides, if we are obliged to go out of the con- 
stitution, to find the persons on whom the government rests, and 
those persons are arbitrarily prescribed by some other instrument, 
independent of the constitution, this contradiction would follow, 
viz., that the United States government would be a subordinate 
government — a mere appendage to something else — a tail to 
some other kite — or rather a tail to a large number of kites at 
once — instead of being, as it declares itself to be, the supreme 
government — its constitution and laws being the supreme law of 
the land. 

Again. It certainly cannot be admitted that we must go out of 
the United States constitution to find the classes whom it describes 
as " the free," and " all other persons " than " the free," until it be 
shown that the constitution has told us where to go to find them. 
hi all other cases, (without an exception, I think,) where the con- 
stitution makes any of its provisions dependent upon the State 
constitutions or State legislatures, it has particularly described 
them as depending upon them. But it gives no intimation that it 
has left it with the State constitutions, or the State legislatures, to 
prescribe whom it means by the terms " free persons " and " all 
other persons," on whom it requires its own representation to be 
based. We have, therefore, no more authority from the consti- 
tution of the United States, for going to the State constitutions, to 
find the classes described in the former as the " free persons " and 
" all other persons," than we have for going to Turkey or Japan. 
We are compelled, therefore, to find them in the constitution of 
the United States itself, if any answering to the description can 
possibly be found there. 

Again. If we were permitted to go to the State constitutions, 
or to the State statute books, to find who were the persons intend- 
ed by the constitution of the United States ; and if, as the slave 
argument assumes, it was left to the States respectively to pre- 
scribe who should, and who should not, be " free " within the mean- 
ing of the constitution of the United States, it would follow that 
the terms " free" and " all other persons," might be applied in as 
many different ways, and to as many different classes of persons, 
as there were different States in ihe Union. Not only so, but the 



THE CONSTITUTION OF THE UNITED STATES. 77 

application might also be varied at pleasure in the same State. 
One inevitable consequence of this state of things would be, that 
there could be neither a permanent, nor a uniform basis of repre- 
sentation throughout the country. Another possible, and even 
probable consequence would be, such inextricable confusion, as to 
the persons described by the same terms in the different States, 
that Congress could not apportion the national representation at 
all, in the manner required by the constitution. The questions 
of law, arising out of the different uses of the word " free," by the 
different States, might be made so endless and inexplicable, that 
the State governments might entirely defeat all the power of the 
general government to make an apportionment. 

If the slave construction be put upon this clause, still another 
difficulty, in the way of making an apportionment, would follow, 
viz., that Congress could have no legal knowledge of the persons 
composing each of the two different classes, on which its repre- 
sentation must be based ; for there is no legal record — known to 
the laws of the United States, or even to the laws of the States — 
of those who are slaves, or those who are not. The information 
obtained by the census takers, (who have no legal records to go 
to,) must, in the nature of things, be of the most loose and uncer- 
tain character, on such points as these. Any accurate or legal 
knowledge on the subject is, therefore, obviously impossible. But 
if the other construction be adopted, this difficulty is avoided — 
for Congress then have the control of the whole matter, and may 
adopt such means as may be necessary for ascertaining accurately 
the persons who belong to each of these different classes. And 
by their naturalization laws they actually do provide for a legal 
record of all who are made " free " by naturalization. 

And this consideration of certainty, as to the individuals and 
numbers belonging to each of these two classes, " free" and " all 
other persons," acquires an increased and irresistible force, when 
it is considered that these different classes of persons constitute 
also different bases for taxation, as well as representation. The 
requirement of the constitution is, that " representatives and direct 
taxes shall be apportioned," &c., according to the number of" free 
persons" and " all other persons." In reference to so important a 
subject as taxation, accurate and legal knowledge of the persons 
and numbers belonging to the different classes, becomes indispen- 
sable. Yet under the slave construction this legal knowledge be- 
comes impossible. Under the other construction it is as perfectly 
7)«= 



78 THE UNCONSTITUTIONALITY OF SLAVERY. 

and entirely within the power of Congress, as, in the nature of 
things, such a subject can be — for naturalization is a legal pro- 
cess ; and legal records, prescribed by Congress, may be, and 
actually are, preserved of all the persons naturalized or made 
" free " by their laws. 

If we adopt that meaning of the word " free," which is consist- 
ent with freedom — that meaning which is consistent with natural 
right — the meaning given to it by the Articles of Confederation, 
by the then existing State constitutions, by the colonial charters, 
and by the English law ever since our ancestors enjoyed the name 
of freemen, all these difficulties, inconsistencies, contradictions and 
absurdities, that must otherwise arise, vanish. The word " free" 
then describes the native and naturalized citizens of the United 
States, and the words " all other persons" describe resident aliens, 
" Indians not taxed," and possibly some others. The represen- 
sentaiion is then placed upon the best, most just, and most rational 
basis that the words used can be made to describe. The repre- 
tation also becomes "equal and uniform throughout the country. 
The principle of distinction between the two bases, becomes also 
a stable, rational and intelligible one — one too necessarily grow- 
ing out of the exercise of one of the powers granted to Congress ; 

— one, too, whose operation could have been foreseen and judged 
of by the people who adopted the constitution — instead of one 
fluctuating with the ever-changing and arbitrary legislation of the 
various States, whose mode and motives of action could not have 
been anticipated. Adopt this definition of the word " free," and 
the same legislature (that is, the national one) that is required 
by the constitution to apportion the representation according to 
certain principles, becomes invested — as it evidently ought to he, 
and as it necessarily must be, to be efficient — with the power of 
determining, by their own (naturalization) laws, who are the per- 
sons composing the different bases on which its apportionment is 
to be made ; instead of being, as they otherwise would be, obliged 
to seek for these persons through all the statute boolcs of all the 
different States of the Union, and through all the evidences of 
private property, under which one of these classes might be held. 
Adopt this definition of the word " free," and the Uniled States 
government becomes, so far at least as its popular representation 

— which is its most important feature — is concerned, an independ- 
ent government, subsisting by its own vigor, and pervaded through- 
out by one uniform principle. Reject this definition, and the 



THE CONSTITUTION OF THE UNITED STATES. 79 

popular national representation loses at once its nationality, and 
becomes a mere dependency on the will of local corporations — a 
mere shuttlecock to be driven hither and thither by the arbitrary 
and conflicting legislation of an indefinite irumber of separate 
States. Adopt this meaning of the word " free," and the national 
government becomes capable of knowing its own bases of repre- 
sentation and power, and its own subjects of taxation. Reject this 
definition, and the government knows not whom it represents, or 
on whom to levy taxes for its support. Adopt this meaning of the 
word " free," and some three millions of native born, but now 
crushed human beings, become, with their posterity, men and 
citizens. Adopt this meaning — this legal meaning — this 07ily 
meaning that can, in this clause, be legally given to the Avord 
" free," and our constitution becomes, instead of a nefarious com- 
pact of conspirators against the rights of man, a consistent and 
impartial contract of government between all " the people of the 
United States," for securing " to themselves and their posterity the 
blessings of liberty" and " justice." 

Again. We cannot unnecessarily place upon the constitution 
a meaning directly destructive of the government it was designed 
to establish. By giving to the word " free" the meaning univer- 
sally given to it by our political papers of a similar character up 
to the time the constitution was adopted, we give to the govern- 
ment three millions of citizens, ready to fight and be taxed for its 
support. By giving to the word " free " a meaning correlative 
with slavery, we locate in our midst three millions of enemies ; 
thus making a difference of six millions, (one third of our whole 
number,) in the physical strength of the nation. Certainly a 
meaning so suicidal towards the government, cannot be given to 
an)'' part of the constitution, except the language be irresistibly 
explicit ; much less can it be done, (as in this case it would be,) 
wantonly, unnecessarily, gratuitously, wickedly, and in violation 
of all previous usage. 

Again. If we look into the constitution itself for the meaning 
of the word " free," we find it to result from the distinction there 
recognized between citizens and aliens. If we look into the con- 
temporary State constitutions, we still find the word " free" to 
express the political relation of the individual to the State, and not 
any property relation of one individual to another. If we look into 
the law of nature for the meaning of the word " free," we find that 
by that law all mankind are free. Whether, thersfore, we look to 



80 THE UNCONSTITUTIONALITY OF SLAVERY 

the constitution itself, to the contemporary State constitutions, or 
to the law of nature, for the meaning of this word " free," the 
only meaning we shall find is one consistent with the personal 
liberty of all. On the other hand, if we are resolved to give the 
word a meaning correlative with slavery, we must go to the lawless 
code of the kidnapper to find such a meaning. Does it need any 
argument to prove to which of these different codes our judicial 
tribunals are bound to go, to find the meaning of the words used 
in a constitution, that is established professedly to secure liberty 
and justice ? 

Once more. It is altogether a false, absurd, violent, unnatural 
and preposterous proceeding, in construing a political paper, which 
purports to establish men's relations to the State, and especially 
in construing the clause in which it fixes the basis of representation 
and taxation, to give to the words, which describe the persons to 
be represented and taxed, and which appropriately indicate those re- 
lations of men to the State which make them proper subjects of tax- 
ation and representation — to give to such words a meaning, which, 
instead of describing men's relations to the State, would describe 
merely a personal or property relation of one individual to another, 
which the State has nowhere else recognized, and which, if ad- 
mitted to exist, would absolve the persons described from all alle- 
giance to the Slate, would deny them all right to be represented, 
and discharge them from all liability to be taxed. ^ 



* It is a well settled rule of interpretation, that each single word of an instrument 
must be taken to have some appropriate reference or -relation to the matters treated 
of in the rest of the instrument, where it is capable of such a meaning. By this 
rule the words " Iree" and "freeman," when used in charters of incorporation, uni- 
versally apply to persons who are members of the corporation — or are (as it is 
termed) " free of the company " or corporation, created by the charter — that is, free 
to enjoy, as a matter of right, the privileges of the corporation. It is not probable 
that, at the adoption of the constitution, any other use of these words, " free " and 
" freeman," could have been found in a single charter of incorporation in the Eng- 
lish language, whether the charter were one of a trading corporation, of a city, a 
colony, or a State. Now, the constitution of the United States is but the charter 
of a corporation. Its object is to form "the people of the United States" into a 
corporation, or body politic, for the purpose of maintaining government, and for 
dispensing the benefits of government to the members of the corporation. If the 
word " free," in such a charter, is to be construed to have any reference to the 
general subject matter of the charter, it of course refers to those who are members 
of the corporation ; to the citizens ; those who are " free of the corporation," as 
distinguished from aliens, or persons not members of the corporation. 

But the advocates of slavery are compelled to adopt the absurdity of denying that 
the meaning of the word " free " has any relation to the rest of the instrument ; or 



THE CONSTITUTION OF THE UNITED STATES. 81 

But it is unnecessary to follow out this slave argument into all 
Its ramifications. It sets out with nothing but assumptions, that 
are gratuitous, absurd, improbable, irrelevant, contrary to all pre- 
vious usage, contrary to natural right, and therefore inadmissible. 
It conducts to nothing but contradictions, absurdities, impossibili- 
ties, indiscriminate slavery, anarchy, and the destruction of the 
very government which the constitution was designed to establish. 

The other clause relied on as a recognition and sanction, both 
of slavery and the slave trade, is the following : 

" The migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the year one thousand eight 
hundred and eight, but a tax or duty may be imposed on such 
importation, not exceeding ten dollars for each person." — (Art. 1, 
Sec. 9.) 

The slave argument, drawn from this clause, is, that the word 
" importation " applies only to property, and that it therefore im- 
plies, in this clause, that the persons to be imported are neces- 
sarily to be imported as property — that is, as slaves. 

But the idea that the word " importation " applies only to pro- 
perty, is erroneous. It applies correctly both to persons and 
things. The definition of the verb " import" is simply " to bring 
from a foreign country, or jurisdiction, or from another State, into 
one's own country, jurisdiction or State." When we speak of 
"importing" things, it is true that we mentally associate with 
them the idea of property. But that is simply because things are 
property, and not because the word " import " has any control, in 
that particular, over the character of the things imported. When 
we speak of importing " persons," we do not associate with them 
the idea of property, simply bepause " persons" are not property. 

We speak daily of the " importation of foreigners into the coun- 
try;" but no one infers therefrom that they are brought in as 
slaves, but as passengers. A vessel imports,, or brings in, five 
hundred passengers. Every vessel, or master of a vessel, that 

any reference to the persons who are really " free of the corporation," which the 
instrument creates. They are obliged to maintain that it is used only to describe 
those who are free from some individual tyranny, which the instrument nowhere 
else recognizes as existing, and which really had no legal existence to be recog- 
nized. 

All this is a palpable violation of a perfectly well settled rule of interpretation — 
of a rule, which is obviously indispensable for maintaining any kind of coherence 
between the different parts of an instrument. 



82 THE UNCONSTITUTIONALITY OF SLAVERY 

* brings in " passengers, " imports " them. But such passengers 
are not therefore slaves. A man imports his wife and children — 
but they are not therefore his slaves, or capable of being owned or 
sold as his property. A man imports a gang of laborers, to clear 
lands, cut canals, or construct railroads ; but not therefore to be 
held as slaves. An innocent meaning must be given to the word, 
if it will bear one. Such is the legal rule. 

Even the popular understanding of the word " import," when 
applied to " persons," does not convey the idea of property. It is 
only when it is applied distinctly to " slaves," that any such idea 
IS conveyed ; and then it is the word " slaves," and not the word 
" import," that suggests the idea of property. Even slave traders 
and slave holders attach no such meaning to the word " impori," 
when it is connected with the word " persons ;" but only when it 
is connected with the word " slaves." 

In the case of Ogden vs. Saunders, (12 Wheaton, 332,) Chief 
Justice Marshall said, that in construing the constitution, " the 
intention of the instrument must prevail ; that this intention must 
be collected from its words ; that its words are to be understood 
in that sense in which they are generally used by those for whom 
the instrument was intended." On this principle of construction, 
there is not the least authority for saying that this provision for 
' the importation of persons," authorized the importation of them 
as slaves. To give it this meaning, requires the same stretching 
of words toivards the wrong, that is applied, by the advocates of 
slavery, to the words " service or labor," and the words " free " 
and " all other persons." 

Another reason, which makes it necessary that this construction 
should be placed upon the word " im'portation^'' is, that the clause 
contains no other word that describes the immigration of foreign- 
ers. Yet that the clause related to the immigration of foreigners 
generally, and that it restrained Congress, (up to the year 1808,) 
from prohibiting the immigration of foreigners generally, there 
can be no doubt. 

The object, and the only legal object, of the clause was to re- 
strain Congress from so exercising their " power of regulating com- 
merce with foreign nations, and among the several States, and 
with the Indian tribes " — (which power has been decided by the 
Supreme Court of the United States, to include a power over navi- 
gation and the transportation of passengers in boats and vessels*) 

* Gibbons vs. Ogden. — (9 Wheaton, 1.) 



THE CONSTITUTION OF THE UNITED STATES 83 

— as to obstruct the introduction of new population into such of 
the States as were desirous of increasing their population in that 
manner. The clause does not iniplj^ at all, that the population, 
which the States were thus to " admit," was to be a slave popula- 
tion. 

The word " importation," (I repeat,) is the only word in the 
clause, that applies to persons that were to covie into the country 
from foreign nations. The word " migration'" applies only to 
those who were to go out from one of our own States or Territories 
into another. " Migration" is the act of going out from a state 
or country ; and differs from immigration in this, that immigration 
is the act of coming into a state or country. It is obvious, 
therefore, that the " migration," which Congress are here forbidden 
to prohibit, is simply the going out of persons from one of our 
own States or Territories into another — (for that is the only 
" migration" that could come within the jurisdiction of Congress) 

— and that it has no reference to persons coming in from foreign 
countries to our own. 

If, then, " migration," as here used, has reference only to per- 
sons going out from one State into another, the word " importa- 
tion " is the only one in the clause that is applicable to foreigners 
coming into our country. This word " importation," then, being 
the only word that can apply to persons coming into the country, 
it must be considered as substantially synonymous with immigra- 
tion, and must apply equally to all " persons," that are " imported," 
or brought into the country as passengers. And if it applies 
equally to all persons, that are brought in as passengers, it does 
not imply that any of those persons are slaves ; for no one will 
pretend that this clause ever authorized the State governments to 
treat as slaves all persons that were brought into the country as 
passengers. And if it did not authorize them to treat all such 
passengers as slaves, it did not authorize them to treat any of 
them as such ; for it makes no discrimination between the different 
*' persons " that should be thus imported. 

Again. The argument, that the allowance of the " importa 
tion " of " persons," implies the allowance of property in such 
persons, would imply a recognition of the validity of the slave 
laws of other countries ; for unless slaves were obtained by valid 
purchase abroad — which purchase implies the existence and valid- 
ity of foreign slave laws — the importer certainly could not claim 
to import his slaves as property ; but he would appear at the 



84 THE UNCONSTITUTIONALITY OF SLAVERY. 

custom-house as a mere pirate, claiming to have his captures 
legalized. So that, according to the slave argument, the simple 
use of the word " importation," in the constitution, as applied to 
" persons," bound our government, not only to the sanction and 
toleration of slavery in our own country, but to the recognition of 
the validity of the slave laws of other countries. 

But further. The allowance of the " importation" of slaves, as 
such, under this clause of the constitution, would imply that Con- 
gress must take actual, and even the most critical cognizance of 
the slave laws of other countries ; and that they should allow 
neither the mere word of the person calling himself the owner, nor 
anythmg short of the fullest and clearest legal proof, according to 
the laws of those countries, to be sufficient to enable him to enter 
his slaves, as property, at the custom-house ; otherwise any 
masters of vessels, from England or France, as well as from 
Africa, might, on their arrival here, claim their passengers as 
slaves. Did the constitution, in this clause, by simply using the 
word " importation," instead of immigration, intend to throw upon 
the national government — at the hazard of making it a party to 
the illegal enslavement of human beings — the responsibility of 
investigating and deciding upon the legality and credibility of all 
the evidence that might be offered by the piratical masters of slave 
ships, to prove their valid purchase of, and their right of property 
in, their human cargoes, according to the slave laws of the 
countries from which they should bring them ? Such must have 
been the intention of the constitution, if it intended (as it must, if 
it intended anything of this kind) that the fact of " importation" 
under the commercial regulations of Congress, should be there- 
after a sufficient authority for holding in slavery the persons 
imported. 

But perhaps it will be said that it was not the intention of the 
constitution, that Congress should take any responsibility at all in 
the matter ; that it was merely intended that whoever came into 
the country with a cargo of men, whom he called his slaves, 
should be permitted to bring them in on his own responsibility, 
and sell them as slaves for life to our people ; and that Congress 
were prohibited only from interfering, or asking any questions as 
to how he obtained them, or how they became his slaves. Sup- 
pose such were the intention of the constitution — what follows? 
Why, that the national government, the only government that was 
'0 be known to foreign nations, the only government that waa 



THE CONSTITUTION OF THE UNITED STATES. 85 

to be permitted to regulate our commerce or make treaties with 
foreign nations, the government on whom alone was to rest 
the responsibility of war with foreign nations, was bound to 
permit (until 1808) all masters, both of our own ships and of 
the ships of other nations, to turn pirates, and make slaves of 
their passengers, whether Englishmen, Frenchmen, or any other 
civilized people, (for the constitution makes no distinction of 
" persons" on this point,) bring them into this country, sell them 
as slaves for life to our people, and thus make our country a 
rendezvous and harbor for pirates, involve us inevitably in war 
with every civilized nation in the world, cause ourselves to be out- 
Uwed as a people, and bring certain and swift destruction upon the 
whole nation ; and yet this government, that had the sole responsi- 
bility of all our foreign relations, was constitutionally prohibited 
from interfering in the matter, or from doing anything but lifting its 
hands in prayer to God and these pirates, that the former would 
so far depart, and the latter so far desist from their usual courses, 
as might be necessary to save us until 1808, (after which time we 
would take the matter into our own hands, and, by prohibiting the 
cause of the 'danger, save ourselves,) from the just vengeance, 
which the rest of mankind were taking upon us. 

This is the kind of constitution, under which (according to the 
slave argument) we lived until 1S08. 

But is such the real character of the constitution ? By it, did 
we thus really avow to the world that we were a nation of pirates ? 
that our territory should be a harbor for pirates ? that our people 
were constitutionally licensed to enslave the people of all other 
nations, without discrimination, (for the instrument makes no 
discrimination,) whom they could either kidnap in their own coun- 
tries, or capture on the high seas ? and that we had even prohibited 
our only government that could make treaties with foreign nations, 
from making any treaty, until 1808, with any particular nation, to 
exempt the people of that nation from their liability to be enslaved 
by the people of our own ? The slave argument says that we did 
avow all this. If we really did, perhaps all that can be said of it 
now is, that it is very fortunate for us that other nations did not 
take us at our word. For if they had taken us at our word, we 
should, before 1808, have been among the nations that were. 

Suppose that, on the organization of our government, we had 
been charged by foreign nations with having established a piratical 
government — how could we have rebutted the charge otherwise 



86 THE unconstiti;tionalit\ of slavhry. 

than by den^-ing that the words " importation of persons" legally 
implied that the persons imported were slaves ? Suppose that 
European ambassadors had represented to President Washington 
that their governments considered our constitution as licensing our 
people to kidnap the people of other nations, without discrimina- 
tion, and bring them to the United States as slaves. Would he 
not have denied that the legal meaning of the clause did anything 
more than secure the free introduction of foreigners as passengers 
and freemen? Or would he — Ae, the world-renowned champion 
of human rights — have indeed stooped to the acknowledgment 
that in truth he was the head of a nation of pirates, whose constitu- 
tion did guaranty the freedom of kidnapping men abroad, and 
importing them as slaves? And would he, in the event of this 
acknowledgment, have sought to avert the destruction, which such 
an avowal would be likely to bring upon the nation, by pleading 
that, although such was the legal meaning of the words of our 
constitution, we yet had an understanding, (an honorable under- 
standing !) among ourselves, that we would not take advantage of 
the license to kidnap or make slaves of any of the citizens of those 
civilized and powerful nations of Europe, that kept ■ships of war, 
and knew the use of gunpowder and cannon ; but only the people 
of poor, weak, barbarous and ignorant nations, who were incapable 
of resistance and retaliation ? 

Again. Even the allowance of the simple "importation" of 
slaves — (and that is the most that is literally provided for — and 
the word "importation" must be construed to the letter,) would 
not, of itself, give any authority for the continuance of slavery 
after " importation." If a man bring either property or persons 
into this country, he brings them in to abide the constitutional 
laws of the country ; and not to be held according to the customs 
of the country from which they were brought. Were it not so, 
the Turk might import a harem of Georgian slaves, and, at his 
option, either hold them as his own property, or sell them as 
slaves to our own people, in defiance of any principles of freedom 
that should prevail amongst us. To allow this kind of " importa- 
tion," would be to allow not merely the importation of foreign 
•' persons," but also foreign laws to take precedence of our own. 

Finally. The conclusion, that Congress were restrained, by 
this clause, only from prohibiting the immigration of a foreign 
population, and not from prohibiting the importation of slaves, to 
be held as slaves after their iinporialion — is the more inevitable 



THE CONSTITUTION OF THE UNITED STATES. 87 

from the fact that the power given to Congress of naturalizing 
foreigners, is entirely unlimited — except that their laws must be 
uniform throughout the United States. They have perfect power 
to pass laws that shall naturalize every foreigner without distinction, 
the moment he sets foot on our soil. And they had this power as 
perfectly prior to ISOS, as since. And it is a power entirely incon- 
sistent with the idea that they were bound to admit, and forever 
after to acknowledge as slaves, all or any who might be attempted 
to be brought into the country as such.* 

One other provision of the constitution, viz., the one that " the 
United States shall protect each of the States against domestic 
violence" — has sometimes been claimed as a special pledge of 
impunity and succor to that kind of " violence," which consists- 
in one portion of the people's standing constantly upon the necks 
of another portion, and robbing them of all civil privileges, and 
trampling upon all their personal rights. The argument seems to 
take it for granted, that the only proper way of protecting a 
'■'^republican'''' State (for the States are all to be "republican") 
against " domesiic violence," is to plant men firmly upon one 
another's necks, (about in the proportion of two upon one,) arm the 
two with whip and spur, and then keep an armed force standing 
by to cut down those that are ridden, if they dare attempt to throw 
the riders. When the ridden portion shall, by this process, have 
been so far subdued as to bear the burdens, lashings and spurrings 
of the other portion without resistance, then the state will have 
been secured against " domestic violence," and the " republican 
form of governm.ent" will be completely successful. 

This version of this provision of the constitution presents a fair 
illustration of those new ideas of law and language, that have been 
invented for the special purpose of bringing slavery within the 
pale of the constitution. 

If it have been shown that none of the other clauses of the con- 
stitution refer to slavery, this one, of course, cannot be said to 

* Since the publication of the first edition, it has been asked whether tlie " tas 
or duty " authorized bj' the clause, does not imply that the persons imported are 
property? The answer is this. " A tax or duly " on persons i» a poll lax ; and a 
poll tax is a tax or duty on persons — nothing more — nothing less. A poll lax 
conveys no implication that the persons, on whom the tax is levied, are property — 
otherwise all of us, on whom a poll tax has evor been levied, wer*" deemed by the 
law to be property — ^ and if property, slaves. A poll tax on immigrants no more 
implies that ihey are skives, than a poll lax on natives implies lliat iJie hitler are 
slaves. 



88 THE UNCONSTITUTIONALITY OF SLAVERY. 

refer to slave insurrections ; because if the constitution presumes 
everybody to be free, it of course does not suppose that there can 
be such a thing as an insurrection of slaves. 

But further. The legal meaning, and the only legal meaning 
of the word "violence," in this clause, is unlawful force. The 
guaranty, therefore, is one of protection only against unlawful 
force. Let us apply this doctrine to the case of the slaves and 
their masters, and see w^hich party is entitled to be protected 
against the other. Slaveholding is not an act of law ; it is an act 
of pure "violence," or unlawful force. It is a mere trespass, or 
assault, committed by one person upon another. For example 
— one person beats another, until the latter will obey him, work 
for him without wages, or, in case of a woman, submit to be vio- 
lated. Such was the character (as has been already shown) of all 
the slaveholding practised in this country at the adoption of the 
constitution. Resistance to such slaveholding is not " violence," 
nor resistance to law ; it is nothing more nor less than self-defence 
against a trespass. It is a perfectly lawful resistance to an assault 
and battery. It can no more be called "violence," (unlawful 
force,) than resistance to a burglar, an assassin, a highwayman, 
or a ravisher, can be called "violence." All the "violence" 
(unlawful force) there is in the case, consists in the aggression, not 
in the resistance. This clause, then, so far as it relates to slavery, 
is a guaranty against the "violence" of slaveholding, not against 
any necessary act of self-defence on the part of the slave. 

We have thus examined all those clauses of the constitution, 
that have been relied on to prove that the instrument recognizes 
and sanctions slavery. No one would have ever dreamed that 
cither of these clauses alone, or that all of them together, con- 
tained so much as an allusion to slavery, had it not been for 
circumstances extraneous to the constitution itself. And what are 
these extraneous circumstances? They are the existence and 
toleration, in one portion of the country, of a crime that embodies 
within itself nearly all the other crimes, which it is the principal 
object of all our governments to punish and suppress ; a crime 
which we have therefore no more right to presume that the con- 
stitution of the United States intended to sanction, than we have 
to presume that it intended to sanction all the separate crimes 
which slavery embodies, and our governments prohibit. Yet we 
have gratuitotisly presumed that the constitution intended to 
sanction all these separate crimes, as they are comprehended in 



THE CONSTITUTION OF THE UNITED STATES. 89 

the general crime of slavery. And acting upon, this gratuitous 
presumption, we have sought, in the words of the constitution, for 
some hidden meaning, which we could imagine to have been 
understood, by the initiated, as referring to slavery ; or rather we 
have presumed its words to have been used as a kind of cipher, 
which, among confederates in crime, (as we presume its authors 
to have been,) was meant to stand for slavery. In this way, and 
in this way only, we pretend to have discovered, in the clauses 
that have been examined, a hidden, yet legal sanction of slavery. 
In the name of all that is legal, who of us are safe, if our govern- 
ments, instead of searching our constitutions to find authorities for 
maintaining justice, are to continue to busy themselves in such 
prying and microscopic investigations, after such disguised and 
enigmatical authorities for such wrongs as that of slavery, and 
their pretended discoveries are to be adopted as law, which they 
are sworn to carry into execution ? 

The clauses mentioned, taken either separately or collectively, 
neither assert, imply, sanction, recognize nor acknowledge any 
such thing as slavery. They do not even speak of it. They 
make no allusion to it whatever. They do not suggest, and, of 
themselves, never would have suggested the idea of slavery. 
There is, in the whole instrument, no such word as slave or 
slavery ; nor any language that can legally be made to assert or 
imply the existence of slavery. There is in it nothing about color ; 
nothing from which a liability to slavery can be predicated of one 
person more than another ; or from which such a liability can be 
predicated of any person whatever. The clauses, that have been 
claimed for slavery, are all, in themselves, honest in their lan- 
guage, honest in their legal meaning ; and they can be made 
otherwise only by such gratuitous assumptions against natural 
right, and such straining of words in favor of the wrong, as, if 
applied to other clauses, would utterly destroy every principle of 
liberty and justice, and allow the whole instrument to be perverted 
to every conceivable purpose of tyranny and crime. 

Yet these perversions of the constitution are made by the advo- 
cates of slavery, not merely in defiance of those legal rules of 
interpretation, which apply to all instruments of the kind, but also 
in defiance of the express language of the preamble, which 
declares that the object of the instrument is to "establish justice" 
and " secure liberty " — which declaration alone would furnish an 
imperative rule of interpretation, independently of all other rules. 
8=^ 



90 THE UNCONSTITUTIONALITY OF SLAVERY. 

Let US now look at the positive provisions of the constitution, in 
favor of liberty., and see whether they are not only inconsistent 
with any legal sanction of slavery, but also whether they must not, 
of themselves, have necessarily extingnished slavery, if it had had 
any constitutional existence to be extinguished. 

And, first, the constitution made all " the people of the United 
States" citizens under the government to be established by it; for 
all of those, by whose authority the constitution declares itself to 
be established, must of course be presumed to have been made 
citizens under it. And whether they were entitled or not to the 
right of suffrage, they were at least entitled to all the personal 
liberty and protection, which the constitution professes to secure to 
"the people" generally. 

Who, then, established the constitution ? 

The preamble to the constitution has told us in the plainest 
possible terms, to wit, that "We, the people of the United States," 
" do ordain and establish this constitution," &c. 

By " the people of the United States," here mentioned, the con- 
stitution intends all " the people " then permanently inhabiting the 
United States. If it does not intend all, who were intended by 
" the people of the United States ? " — The constitution itself gives 
no answer to such a question. — It does not declare that "we, the 
white people," or "v/e, the free people," or "we, a part of the 
people" — but that "we, the people" — that is, we the whole peo- 
ple — of the United States, " do ordain and establish this constitu- 
tion." 

If the whole people of the United States were not recognized as 
citizens by the constitution, then the constitution gives no infor- 
mation as to what portion of the people were to be citizens under 
it. And the consequence would then follow that the constitution 
established a government that could not know its own citizens. 

We cannot go out of the constitution for evidence to prove who 
were to be citizens under it. We cannot go out of a written 
instrument for evidence to prove the parties to it, nor to explain its 
meaning, except the language of the instrument on that point be 
ambiguous. In this case there is no ambiguity. The language 
of the instrument is perfectly explicit and intelligible. 

Because the whole people of the country were not allowed to 
vote on the ratification of the constitution, it does not follow that 
they were not made citizens under it; for women and children 
did not vote on its adoption ; yet they are made citizens by it, and 



THE CONSTITUTION OF THE UNITED STATES. 91 

are entitled as citizens to its protection ; and the State govern- 
ments cannot enslave them. The national constitution does not 
limit the right of citizenship and protection by the right of suffrage, 
any more than do the State constitutions. Under the most, proba- 
bly under all, the State constitutions, there are persons who are 
denied the right of suffrage — but they are not therefore liable to 
be enslaved. 

Those who did take part in the actual ratification of the consti- 
tution, acted in behalf of, and, in theory, represented the authority 
of the whole people. Such is the theory in this country 
wherever suffrage is confined to a few ; and such is the virtual 
declaration of the constitution itself. The declaration that "we 
the people of the United States do ordain and establish this con- 
stitution," is equiv'alent to a declaration that those who actually 
participated in its adoption, acted in behalf of all others, as well as 
for themselves. 

Any private intentions or understandings, on the part of one 
portion of the people, as to who should be citizens, cannot be 
admitted to prove that such portion only were intended by the 
constitution, to be citizens; for- the intentions of the other portion 
would be equally admissible to exclude the exclusives. The mass 
of the people of that day could claim citizenship under the consti- 
tution, on no other ground than as being a part of " the people of 
the United States ;" and such claim necessarily admits that all 
other "people of the United States" were equally citizens. 

That the designation, " We, the people of the United States," 
included the whole people that properly belonged to the United 
States, is also proved by the fact that no exception is made in any 
other part of the instrument. 

If the constitution had intended that any portion of " the people 
of the United States" should be excepted from its benefits, disfran- 
chised, outlawed, enslaved, it would of course have designated 
these exceptions with such particularity as to make it sure that 
none but the true persons intended would be liable to be subjected 
to such wrongs. Yet, instead of such particular designation of 
the exceptions, we find no designation whatever of the kind. But 
on the contrary, we do find, in the preamble itself, a sweeping 
declaration to the effect that there are no such exceptions ; that 
the whole people of the United States are citizens, and entitled to 
liberty, protection, and the dispensation of justice under the con- 
stitution. 



92 THE unconstitutio^,aL:ty of slavery. 

If it be admitted that the constitution designated its own citizens, 
then there is no escape from the conclusicn that it designated the 
whole people of the United States as such. On the other hand, 
if it be denied that the constitution designated its own citizens, 
one of these two conclusions must follow, viz., 1st, that it has no 
citizens ; or, 2d, that it has left an unrestrained power in ihe State 
governments to delfcrmine who may, and who may not be citizens 
of the United States government. If the first of these conclusions 
be adopted, viz., that the constitution has no citizens, then it fol- 
lows that there is really no United States goverrnnent, except on 
paper — for there would be as much reason in talking of an army 
without men, as of a government without citizens. If the second 
conclusion be adopted, viz., that the State governments have the 
right of determining who may, and who may not be citizens of 
the United Slates government, then it follows that the state gov- 
ernments may at pleasure destroy the government of the United 
States, by enacting that none of their respective inhabitants shall 
be citizens of the United States. 

This latter is really the doctrine of some of the slave States — 
the "state-rights" doctrine, so called. That doctrine holds that 
the .reneral government is merely a confederacy or league of the 
several States, as States ; not a government established by the peo- 
ple, as indiviuuals. This " state-rights " doctrine has been declared 
unconstitutional by reiterated opinions of the Supreme Court of the 
United States ;'^ and, what is of more consequence, it is denied 
also b)' the preamble to the constitution itself, which declares that 
it is "the people" (and not the State governments) that ordain 
and establish it. It is true also that the constitution was ratified 
by conventions of the people, and not by the legislatures of the 
States. Yet because the constitution was ratified by conventions 
of the States separately, (as it naturally would be for convenience, 
and as it necessarily must have been for the reason that none but 

* " The government (of the U. S.) proceeds directly from the people ; is ' or- 
dained and established" in the name of the people." — JVPCulloch vs. Maryland^ 4 
Wheat on, 403. 

"The government of the Union is emphaticalh' and truly, a government of the 
people ; and in form and in substance it emanates from them. Its powers are 
granted by them, and are to be exercised directly on them, and for their benefit." — 
Same, pages 404, 405. 

"The constitution of the United States was ordained and established, noi by the 
United States in their sovereign capacities, but emphatically, as the preamble of 
the constitution declares, by 'the people of the United States.'" — Mj,rtin\%. 
Hunter's lessee, 1 Wheaton, 324. 



THE CONSTITUTION OF THE UNITED STATES. 93 

the people of the respective States could recall any portion of the 
authority they had delegated to their State governments, so as to 
grant it to the United States government,) — yet because it was 
thus ratified, I say, some of the slave States have claimed that the 
general government was a league of States, instead of a govern- 
ment formed by "the people." The true reason why the slave 
States have held this theory, probably is, because it would give, or 
appear to give, to the States the right of determining who should, 
and who should not, be citizens of the United States. They 
probably saw that if it were admitted that the constitution of the 
United States had designated its own citizens, it had undeniably 
designated the whole people of the then United States as such ; 
and that, as a State could not enslave a citizen of the United 
States, (on account of the supremacy of the constitution of the 
United States,) it would follow that there could be no constitu- 
tional slavery in the United States. 

Again. If the constitution was established by authority of all 
"the people of the United Slates,'' they were all legally parties to 
it, and citizens under it. And if they were parties to it, and 
citizens under it, it follows that neither they, nor their pos- 
terity, nor any nor either of them, can ever be legally enslaved 
within the territory of the United States ; for the constitution 
declares its object to be, among other things, " to secure the bless- 
ings of liberty to ourselves, and our posterity." This purpose of 
the national constitution is a law paramount to all State constitu- 
tions ; for it is declared that " this constitution, and the laws of the 
United States that shall be made in pursuance thereof, and nil 
treaties made, or which shall be made under the authority of the 
United States, shall be the supreme law of the land ; and the 
judges in every State shall be bound thereby, anything in the con- 
stitution or laws of any State to the contrary notwithstanding." 

No one, I suppose, doubts that if the State governments were 
to abolish slavery, the slaves would then, without further legisla- 
tion, become citizens of the United States. Yet, in reality, if 
they would become citizens then, they are equally citizens now — 
else it would follow that the State governments had an arbitrary 
power of making citizens of the United States; or — what is 
equally absurd — it would follow that disabilities, arbitrarily im- 
posed by the State governments, upon native inhabitants of the 
country, were, of themselves, sufficient to deprive such inhabitants 
of the citizenship, which would otherwise have been conferred 



9-4 ' THE UNCONSTITUTIONALITY OF SLAVERY. 

upon them by the constitution of the United States. To suppose 
that the State governments are thus able, arbitrarily, to keep in 
abeyance, or arbitrarily to withhold from any of the inhabitants of 
the country, any of the benefits or rights which the national con- 
stitution intended to confer upon them, would be to suppose that 
the State constitutions were paramount to the national one. The 
conclusion, therefore, is inevitable, that the State governments 
have no power to withhold the rights of citizenship from any who 
are otherwise competent to become citizens. And as all the native 
born inhabitants of the country are at least competent to become 
citizens of the United States, (if they are not already such,) the 
State governments have no power, by slave laws or any other, to 
withhold the rights of citizenship from them. 

But however clear it may be, that the constitution, in reality, 
made citizens of all " the people of the United States," yet it is 
not necessary to maintain that point, in order to prove that the 
constitution gave no guaranty or sanction to slavery — for if it had 
not already given citizenship to all, it nevertheless gave to the 
government of the United States unlimited power of ofTering citi- 
zenship to all. The power given to the government of passing 
naturalization laws, is entirely unrestricted, except that the laws 
must be uniform throughout the country. And the government 
have undoubted power to offer naturalization and citizenship to 
every person in the country, whether foreigner or native, who is 
not already a citizen. To suppose that we have in the country 
three millions of native born inhabitants, not citizens, and whom 
the national government has no power to make citizens, when its 
power of naturalization is entirely unrestricted, is a palpable con- 
tradiction. 

But further. The constitution of the United States must be 
made consistent with itself throughout ; and if any of its parts are 
irreconcilable with each other, those parts that are inconsistent 
with liberty, justice and right, must be throvm out for inconsistency. 
Besides the provisions already mentioned, there are numerous 
others, in the constitution of the United States, that are entirely 
and irreconcilably inconsistent with the idea that there either was. 
or could be, any constitutional slavery in this country. 

Among these provisions are the following : 

First. Congress have power to lay a capitation or poll tax 
upon the people of the country. Upon whom shall this tax be 
levied ? and who must be held r> sponsible for its payment f Sup- 



THE CONSTITUTION OF THE UNITED STATES. 95 

pose a poll tax were laid upon a man, whom the Slate laws should 
pretend to call a slave. Are the United States under the neces- 
sity 01 investigating, or taking any notice of the fact of slavery, 
either for the purpose of excusing the man himself from the tax, 
or of throwing it upon the person claiming to be his owner ? 
jrvlust the government of the United States find a man's pretended 
owner, or only the man himself, before they can tax him ? Clearly 
the United States are not bound to tax any one but the individual 
himself, or to hold any other person responsible for the tax. Any 
other principle would enable the State governments to defeat any 
tax of this kind levied by the United States. Yet a man's lia- 
bility to be held personally responsible for the payment of a tax, 
levied upon himself by the government of the United States, is 
inconsistent with the idea that the government is bound to recog- 
nize him as not having the ov.nership of his own person. 

Second. " The Congress shall have power to regulate com- 
merce with foreign nations, and among the several States, and 
with the Indian tribes." 

This power is held, by the Supreme Court of the United States, 
to be an exclusive one in the general government ; and it obvi- 
ously must be so, to be effectual — for if the States could also 
interfere to regulate it, the States could at pleasure defeat the 
regulations of Congress. 

Congress, then, having the exclusive power of regulating this 
commerce, they only (if anybody) can say who may, and who 
may not, carry it on ; and probably even they have no poAver to 
discriminate arbitrarily between individuals. But, in no event, 
have the State governments any right to say who may, or who 
may not, carry on " commerce with foreign nations," or " among 
the several States," or " with the Indian tribes." Every individ- 
ual — naturally competent to make contracts — whom the State 
laws declare to be a slave, probably has, and certainly may have, 
under the regulations of Congress, as perfect a right to carry on 
" commerce with foreign nations, and among the several States, 
and with the Indian tribes," as any other citizen of the United 
States can have — " anything in the constitution or laws of any 
State to the contrary notwithstanding." Yet this right of carry- 
ing on commerce is a right entirely inconsistent with the idea oi 
a man's being a slave. 

Again. It is a principle of law that the right of traffic is a 
natural right, and that all commerce (that is intrinsically innocent) 



96 



THE UNCONSTITUTIONALITY OF SLAVERY. 



is therefore lawful, except what is prohibited by positive legisla 
tion. Traffic with the slaves, either by people of foreign nations 
or by people belonging to other States than the slaves, hi s never 
(so far as I know) been prohibited by Congress, which is the only 
government (if any) that has power to prohibit it. Traffic with 
the slaves is therefore as lawful at this moment, under the consti- 
tution of the United States, as is traffic with their masters ; and 
this fact is entirely inconsistent with the idea that their bondage 
is constitutional. 

Third. " The Congress shall have power to establish post 
offices and post roads." 

Who, but Congress, have any right to say who may send, or 
receive letters by the United States posts ? Certainly no one. 
They have undoubted authority to permit any one to send and 
receive letters by their posts — " anything in the constitutions or 
laws of the States to the contrary notwithstanding." Yet the 
right to send and receive letters by post, is a right inconsistent 
with the idea of a man's being a slave. 

Fourth. " The Congress shall have power to promote the 
progress of science and useful arts, by securing for limited times 
to authors and inventors the exclusive right to their respective 
writings and discoveries." 

Suppose a man, whom a State may pretend to call a slave, 
should make an invention or discovery — Congress have un- 
doubted power to secure to such individual himself, by patent, the 
" exclusive ^^ — (mark the word) — the "exclusive right" to his 
invention or discovery. But does not this ^^ exclusive j-ight" in 
the inventor himself, exclude the right of any man, who, under a 
State law, may claim to be the owner of the inventor ? Certainly 
it does. Yet the slave code says that whatever is a slave's is his 
owner's. This power, then, on the part of Congress, to secure to 
an individual the exclusive right to his inventions and discoveries, 
is a power inconsistent with the idea that that individual himself, 
and all he may possess, are the property of another. 

Fifth. " The Congress shall have power to declare war, grant 
letters of marque and reprisal, and make rules concerning cap- 
tures on land and water;" also " to raise and support armies;" 
and " to provide and maintain a navy." 

Have not Congress authority, under these powers, to enlist 
soldiers and sailors, by contract with themselves, and to pay them 



THE CONSTITUTION OF THE UNITED STATES. 97 . 

jneir wages, grant them pensions, and secure their wages and 
pensions to their own use, without asking the permission either of 
the State governments, or of any individuals whom the State 
governments may see fit to recognize as the owners of such sol- 
diers and sailors ? Certainly they have, in defiance of all State 
laws and constitutions whatsoever ; and they have already as- 
serted that principle by enacting that pensions, paid by the United 
States to their soldiers, shall not be liable to be taken for debt, 
under the laws of the States. Have they not authority also to 
grant letters of marque and reprisal, and to secure the prizes, to a 
ship's crew of blacks, as well as of whites ? To those whom the 
State governments call slaves, as well as to those whom the State 
governments call free ? Have not Congress authority to make 
contracts, for the defence of the nation, with any and all the inhab- 
itants of the nation, who may be willing to perform the service ? 
Or are they obliged first to ask and obtain the consent of those 
private individuals who may pretend to own the inhabitants of 
this nation ? Undoubtedly Congress have the power to contract 
with whom they please, and to secure wages and pensions to such 
individuals, in contempt of all State authority. Yet this power is 
inconsistent with the idea that the constitution recognizes or sanc- 
tions the legality of slavery. 

Sixth. " The Congress shall have power to provide for the 
organizing, arming and disciplining the militia, and for govern- 
ing such part of them as may be emploj'ed in the service of the 
United States, reserving to the States respectively the appoint- 
ment of the officer?, and the authority of tra.ining the militia, 
according to the discipline prescribed by Congress." Also " to 
provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions." 

Have not Congress, under these powers, as undoubted authority 
to enroll in the militia, and " «7V« " those whom the States call 
slaves, and authorize them always to keep their arms by them, 
even when not on duty, (that they may at all times be ready to 
be " called forth " "to execute the laws of the Union, suppress 
insurrections, and repel invasions,") as they have thus to enroll 
and arm those whom the States call free ? Can the State govern- 
ments determine who may, and who may not, compose the militia 
of the "United States?" 

Look, too, at this power, in connection with the second amend 
ment to the constitution ; which is in these words : 
9 



98 THE UNCONSTITUTIONALITY <Jt SLAVERY. 

" A well regulated militia being necessary to the security of a 
free State, the right of the people to keep and bear arms shall not 
bo infringed." 

These provisions obviously recognize the natural right of all 
men " to keep and bear arms " for their personal defence ; and 
prohibit both Congress and the State governments from infringing 
the right of " the people" — that is, of any of the people — to do 
so ; and more especially of any whom Congress have power to 
mclude in their militia. This right of a man " to keep and bear 
arms," is a right palpably inconsistent with the idea of his being a 
slave. Yet the right is secured as effectually to those whom the 
States presume to call slaves, as to any whom the States conde- 
scend to acknowledge free. 

Under this provision any man has a nght either to give or sell 
arms to those persons whom the States call slaves ; and there is 
no constitutional power, in either the national or State g'overn- 
ments, that can punish him for so doing ; or that can take those 
arms from the slaves ; or that can make it criminal for the slaves 
to use them, if, from the inefficiency of the lav/s, it should become 
necessary for them to do so, in defence of their own lives or liber- 
ties ; for this constitutional right to keep arms implies the con- 
stitutional right to use them, if need be, for the defence of one's 
liberty or life. 

Seventh. The constitution of the United States declares that 
" no State shall pass any law impairing the obligation of contracts." 

" The obligation of contracts," here spoken of, is, of necessity, 
the natural obligation ; for that is the only real or true obligation 
that any contracts can have. It is also the only obligation, which 
courts recognize in any case, except where legislatures arbitrarily 
interfere to impair it. But the prohibition of the constitution is 
upon the States passing any law whatever that shall impair the 
natural obligation of men's contracts. Yet, if slave laws were 
constitutional, they would effectually impair the obligation of all 
contracts entered into by those who are made slaves ; for the sin ve 
laws must necessarily hold that all a slave's contracts are void. 

This prohibition upon the States to pass any law impairing the 
natural obligation of men's contracts, implies that all men have a 
constitutional right to enter into all contracts that have a natural 
obligation. It therefore secures the constitutional right of all men 
to enter into such contracts, and to have them respected by the 
State governments. Yet this constitutional right of all men to 



THE CONSTITUTION OF THE UNITED STATES. 99 

enter into all contracts that have a natural obligation, and to have 
those contracts recognized by law as valid, is a right plainly 
inconsistent with the idea that men can constitutionally be made 
slaves. 

This provision, therefore, absojVitely prohibits the passag-; of 
slave laws, because laws that make men slaves must necessarily 
impair the obligation of all their contracts. 

Eighth. Persons, whom some of the State governments recog- 
nize as slaves, are made eligible, by the constitution of the United 
States, to the office of President of the United States. The con- 
stitutional pro\asion on this subject is this : 

" No person, except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this constitution, shall 
be eligible to the office of President ; neither shall any person be 
eligible to that office, who shall not have attained the age of 
thirty-five years, and been fourteen years a resident of the United 
States." 

According to this provision, all " persons," * who have resided 

* That is, male persons. The constitution, whenever it uses the pronoun, in 
speaking of the President, uniformly uses the masculine gender — from which it 
may be inferred that male persons only were intended to he made eligible to the 
office. 

Perhaps this inference might not be allowable, if either the office, or eligibility 
to the office, were anything that any one could naturally claim as a right. I5ut 
neither can be claimed as a right. The office is not given to any one because he 
has a right to it, nor because it may be even a benefit to him. It is conferred upon 
him, or rather confided to him, as a trust, and solely as a trust, for the sole benefit 
of the people of the United States. The President, as President, is not supposed 
to have any rights in the office on his own account ; or any rights except what the 
people, for their own benefit, and not for his, have voluntarily chosen to grant to 
him. And the people have a right to confide this trust to whomsoever they please, 
or to whomsoever they think it will be most for their interest to confide it. And 
no one can say that his rights are either violated or withheld, merely because he is 
not selected for the trust, even though his real fitness for the trust should be alto- 
gether superior to that of the one selected. He can only say that his merits or 
qualifications are not properly appreciated. The people have naturally the same 
free, unqualified, irresponsible right to select their agents or servants, accordmg to 
their pleasure or discretion, that a private individual has to select his, without 
giving any one, who is not selected, any reason to say that his rights are violated. 
The most fit person has no more claim, in the nature of a right, to the office, than 
a person the least fit ; -he has only qualifications ; no one has rights. 

The people, then, who establish this office, and for whose benefit alone it is to 
be filled, and whose servant he President is, have naturally an unfjualifiert right to 
e.Kcrcise their free pleasure or discretion in the selection of the person to fill it, 
without giving any one, who is not selected, any ground for saying that iiis rights 
are withheld, or for saying anything other than that his merits or abilities are no{ 



100 THE TJNCONSTITUTIONALITY 01 SLAVERY. 

within the United States fourteen years, have attained the age oi 
thirty-five years, and are either natural horn citizens, or were 
citizens of the United States at the time of the adoption of the con 
stitution, are eligible to the office of President. No other qualifi- 
cations than these being required by the constitution, no others 
can be legally demanded. The only question, then, that can arise, 
is as to the word " citizen." Who are the persons that come 
within this definition, as here used ? The clause itself divides 
them into two classes, to wit, the " natural bom," and those who 
were " citizens of the United States at the time of *he adoption of 
the consiitiition." In regard to this latter class, it has before been 
shown, from the preamble to the constitution, that all who were 
" people of the United States " (that is, permanent inhabitants) at 
the time the constitution was adopted, were made citizens by it. 
A.nd this clause, describing those eligible to the office of President, 
implies the same thing. This is evident ; for it speaks of those 
who were " citizens of the United States at the time of the adop- 
tion of the constitution." Now there clearly could have been no 
" citizens of the United States, at the time of the adoption of the 
constitution," unless they were made so by the constitution itself; 
for there were no " citizens of the United States" before the adop- 
tion of the constitution. The confederation had no citizens. It 



properly estimated. The people, for example, have a right to say, as in their con- 
stitution they have said, that they will confide this trust to no one who is not 
thirty-five years old ; and they do not thereby infringe or withhold any of the rights 
of those who are under thirty-five years old ; although it is possible that they do 
not properly estimate their fitness for the office. So they have a perfect right to 
say that they will not confide this trust to women ; and women cannot say that 
their rights are thereby withheld ; althougii they are at liberty to think and say 
that their qualifications for the office are not appreciated. 

Inasmuch, then, as no rights are withheld or violated by making male persons 
only eligible to the office, we are at perfect liberty to construe the language of tJ>e 
constitution according to its grammatical meaning, without seeking to go beyond 
it. According to this meaning, male persons only are eligible — for the constitu- 
tion speaks of " the President " as a single individual ; and very properly too — 
for although different individuals may fill the' office, yet only one can fill it at a 
time, and the office is presumed never to be vacant. It is therefore of the ojjicer, 
as a sivgle and perpetiud one, and not of the different individuals, (as individuals,) 
who may at different times fill the off.ce, that the constitution speaks, when it 
speaks of " the President." And in speaking of this perpetual officer as a single 
individual, it uniformly uses the masculine pronoun. Inasmuch as it would be a 
plain violation of grammatical rules to speak of a single and particular individual 
as a male person, if the individual were a female, it may (and probably must) b** 
inferred that the constitution did not intend that the office should ever be filled by 
any other than a male person. 



THE CONSTITUTION OF THE UNITED STATES. 101 

^vas a mere league between the State governments. The separate 
States belonging to the confederacy had each their own citizens 
respectively. But the confederation itself, as such, had no citizens. 
There were, therefore, no " citizens of the United States," (but 
only citizens of the respective States,) before the adoption of the 
constitution. Yet this clause asserts that immediately on the 
adoption, or " at the time of the adoption of this constitution," 
there were " citizens of the United States." Those, then, who 
were " citizens of the United States at the time of the adoption of 
the constitution," were necessarily those, and only those, who had 
been made so by the adoption of the constitution ; because they 
could have become citizens at tliat precise " time " in no other way. 
If, then, any persons were made citizens by the adoption of the 
constitution, who were the indioiduals that were thus made 
citizens ? They were " the people of the United States," of course 
— as the preamble to the constitution virtually asserts. And if 
"the people of the United States" were made citizens by the 
adoption of the constitution, then all " the people of the United 
States" were necessarily made citizens by it — for no discrimina- 
tion is made by the constitution between different individuals, 
"people of the United States" — and there is therefore no means 
of determining who were made citizens by the adoption of the 
constitution, unless all " the people of the United States" were so 
made. Any "person," then, who was one of " the people of the 
United States" " at the time of the adoption of this constitution," 
and who is thirty-five yeai-s old, and has resided fourteen years 
within the United States, is eligible to the office of President of 
the United States. And if every such person be eligible, under 
the constitution, to the office of President of the United States, the 
constitution certainly does not recognize them as slaves. 

The other class of citizens, mentioned as being eligible to the 
office of President, consists of the " natural born citizens." Here 
is an implied assertion that natvrcd birth in the country gives the 
right of citizenship. And if it gives it to one, it necessarily gives 
it to all — for no discrimination is made; and if all persons born 
in the country are not entitled to citizenship, the constitution has 
given us no test by which to determine who of them are entitled 
to it. 

Every person, then, born in the country, and that sliall have 
attained the age of thirty-five years, and been fourteen years a 
5"esident within the United States, is eligible to the office of Presi- 
9* 



102 THE TTNCONSTITTTTIONALITY OF SLAVERY. 

dent. And if eligible to that office, the constitution certainly does 
not recognize him as a slave. 

Persons, who are " citizens " of the United States, according lo 
the foregoing definitions, are also eligible to the offices of repre- 
sentative and senator of the United States ; and therefore canno*. 
be slaves. 

Ninth. The constitution declares that " the trial of all crimes, 
except in cases of impeachment, shall be by-jury.''^ Also that 
" Treason against the United States shall consist only in levying 
war against them, or in adhering to their enemies, giving them 
aid and comfort." 

It is obvious that slaves, if we have any, might " levy war 
against the United States," and might also " adhere to their 
enemies, giving them aid and comfort." It may, however, be 
doubted whether they could commit the crime of treason — for 
treason implies a breach of fidelity, trust or allegiance, where 
fidelity, trust or allegiance is due. And it is very clear that slaves 
could owe allegiance, trust or fidelity, neither to the United States, 
nor to the State governments ; for allegiance is due to a govern- 
ment only from those who are protected by it. Slaves could owe 
to our governments nothing but resistance and destruction. If, 
therefore, they were to levy war against the United States, they 
might not perhaps be liable to the technical charge of treason ; 
although there would, in reality, be as much treason in their act, 
as there would of any other crime — for there would, in truth, be 
neither legal nor moral crime of any kind in it. Still, the govern- 
ment would be compelled, in order to protect itself against them, 
to charge them with some crime or other — treason, murder, or 
something else. And this charge, whatever it might be, would 
have to be tried by a jun,'. And what (in criminal cases) is the 
" trial by jury ?" It is a trial, both of the law and the fact, by the 
" peers" or equals, of the person tried. Who are the " peers" of 
a slave? None, evidently, but slaves. If, then, the constitution 
recognizes any such class of persons, in this country, as slaves, it 
would follow that for any crime committed by them against the 
United States, they must be tried, both on the law and the facts. 
by a jury of slaves. The result of such trials we can readily 
imagine. 

Does this look as if the constitution guarantied, or even recog- 
nized the legality of slavery ? 

Tenth. The constitution declares that "The privilege of the 



THE CONSTITUTION OF THE UNITED STATES. 103 

writ of habeas corpus shall not be suspended, unless when, in 
ca-^es of rebellion or invasion, the public safety i»ay require it.' 

The privilege of this writ, vfherever it is allowed, is of itself 
smfficient to make slavery impossible and illegal. The object and 
prerogative of this writ are to secure to all persons their natural 
right to personal liberty, against all restraint except from the gov- 
ernment ; and even against restraints by the government itself, 
unless they are imposed in conformity with established general 
iaw^s, and upon the charge of some legal offence or liability. It 
accordingly liberates all who are held in custody against their 
Mall, (whether by individuals or the g jvernment,) unless they are 
held on some formal writ or process, authorized by law, issued by 
the government^ according to established principles, and enlarging 
the person held by it with some legal offciwe or. liability. The 
principle of the \vi-it seems to be, that no one shall be restrained 
of his natural liberty, unless these three things conspire; 1st, that 
the restraint be imposed by sjjecial comma'nd of tlie goir.rnment ; 
2d, that there be a general law authorizing restraints for specific 
causes ; and, 3d, that the government, previously to issuing pro- 
cess for restraining any particular individual, shall itself, by its 
proper authorities, take express cognizance of, and inquire cau- 
tiously into the facts of each case, and ascertain, by reasonable 
evidence, that the individual has brought himself wiihin the 
liabilities of the general law. All these things the wTit of habeas 
€orpus secures to be done, before it will suffer a man to be 
restrained of his liberty ; for the writ is a mandate to the person 
holding another in custody, commanding him to bring his pris- 
oner before the court, and show the authority by which he holds 
him. Unless he then exhibit a legal precept, warrant or writ, 
issued by, and bearing the seal of the government, specifying a 
Segal ground for restraining the prisoner, and authorizing or requir- 
ing him to hold him in custody, he will be ordered to let him go 
free. Hence all keepers of prisons, in order to hold their prisoners 
against tlie authority of this writ, are required, in the case of each 
prisoner, to have a written precept or order, bearing the seal of 
the government, and issued by the proper authority, particularly 
describing the prisoner by name or olher%vise, and setting forth 
the legal grovmds of his imprisonment, and requiring the keeper of 
the prison to hold him in his custody. 

Now the master does not hold his slave :n custody by virtue of 
any formal or legal writ or process, either authorized by law, or 



104 THE UNCONSTITUTIONALITY OF SLAVERY. 

issued by the government, or that charges the slave with any 
legal offence or liability. A slave is incapable of incurring any 
legal liability, or obligation to his master. And the government 
could, with no more consistency, grant a writ or process to the 
master, to enable him to hold his slave, than it could to enable 
him to hold his horse. It simply recognizes his right of property 
in his slave, and then leaves him at liberty to hold him by brute 
force, if he can, as he holds his ox, or his horse — and not other- 
wise. If the slave escape, or refuse to labor, the slave code na 
more authorizes the government to issue legal process against the 
slave, to authorize the master to catch him, or compel him to 
labor, than "it does against a horse for the same purpose. — The 
slave is held simply as property, by individual force, without legal 
process. But the writ of habeas corpus acknowledges no such 
principle as the right- of property in man. If it did, it would be 
perfectly impotent in all cases whatsoever ; because it is a prin- 
ciple of law, in regard to property, that simple possession is priTna 
facie evidence of ownership; and therefore any man, who was 
holding another in custody, could defeat the writ by pleading that 
he owned his prisoner, and by giving, as proof of ownership, the 
simple fact that he was in possession of him. If, therefore, the 
writ of habeas corpus did not, 9f itself, involve a denial of the 
right of property in man, the fact stated in it, that one man was 
holding another in custody, would be prima facie evidence that 
he owned him, and had a right to hold him ; and the writ would 
therefore carry an absurdity on its face. 

The ^vrit of habeas corpus, then, necessarily denies the right of 
property in man. And the constitution, by declaring, without any 
discrimination of persons, that " the privilege of this writ shall not 
be suspended," — that is, shall not be denied to any human being 
— has declared that, under the constitution, there can be no right 
of property in man. 

This writ was unquestionably intended as a great constitutional 
guaranty of personal liberty. But unless it denies the right of 
property in man, it in reality affords no protection to any of us 
against being made slaves. If it does deny the right of property 
in man, the slave is entitled to the privilege of the writ ,• for he is 
held in custody by his master, simply en the ground of property. 

Mr. Christian, one of Blackstone's editors, says that it is this 
•writ that makes slavery impossible in England. It was on this 
writ, that Somerset was liberated. The writ, in fact, asserts, as a 



THE CONSTITUTION OF THE UNITED STATES. 105 

great constitutional principle, the natural right of personal liberty. 
And the privilege of the writ is not confined to citizens, but extends 
to all human beings.* And it is probably the only absolute guar- 
anty, that our national constitution gives to foreigners and aliens, 
that they shall not, on their arrival here, be enslaved by those of 
our State governments that exhibit such propensities for enslaving 
their fellow-men. For this purpose, it is a perfect guaranty to 
people who come here from any part of the world. And if it be 
such a guaranty to foreigners and aliens, is it no guaranty to those 
born under the constitution ? Especially when the constitution 
miakes no discrimination of persons ? 

Eleve7ith. " The United States shall guaranty to every State 
in this Union a republican form of government, and shall protect 
each of them against invasion ; and, on application of the legis- 
lature, or of the executive, (when the legislature cannot be con 
vened,) against domestic violence." 

Mark the strength and explicitness of the first clause of this 
section, to wit, "The United States shall guaranty to every State 
in this Union a republican form of government." Mark also 
especially that this guaranty is one of liberty, and not of slavery. 

We have all of us heretofore been compelled to hear, from indi- 
viduals of slaveholding principles, many arrogant and bombastic 
assertions, touching the constitutional '■^guaranties" given to 
slavery ; and persons, who -are in the habit of taking their consti- 
tutional law from other men's mouths, instead of looking at the 
constitution for themselves, have probably been led to imagine that 
the constitution had really given such guaranties in some explicit 
and tangible form. We have, nevertheless, seen that all those 
pretended guaranties are at most nothing but certain vague hints, 
insinuations, ciphers and innuendoes, that are imagined to be 
covered up under language which legally means nothing of the 
kind. Bui, in the clause now cit^d, we do have an explicit and 
peremptory "guaranty," depending upon no implications, infer- 
ences or conjectures, and couched in no uncertain or ambiguous 
terms. And what is this guaranty ? Is it a guaranty of slavery? 
No. It is a guaranty of something flatly incompatible with 



* Somerset was not a citizen of England, or entitled, as such, to the protection of 
the English law. The privilege of the writ of habeas corpus was granted to him 
on the ground simply of his being a man. 



106 THE UNCONSTITUTIONALITY OF SLAVERY. 

slavery : a g-uaranty of " a republican form of government to every 
State in this Union." 

And what is "a republican form of government?" It is where 
the government is a commonwealth — the property of the public, 
of the mass of the people, or of the entire people. It is where the 
government is made up of, and controlled by the combined will 
and power of the public, or mass of the people — and where, of 
natural consequence, it will have, for its object, the protection of 
the rights of all. It is indispensable to a republican form of gov- 
ernment, that the public, the mass of the people, if not the entire 
people, participate in the grant of powers to the government, and 
in the protection afforded by the government. It is impossible, 
therefore, that a government, under which any considerable num- 
ber of the people (if indeed any number of the people, are disfran- 
chised and enslaved, can be a republic. A slave government is 
an oligarchy ; and one too of the most arbitrary and criminal 
character. 

Strange that men, who have ej^es capable of discovering in the 
constitution so many covert, implied and insinuated guaranties of 
crime and slavery, should be blind to the legal import of so open, 
explicit and peremptory a guaranty of freedom, equality and right. 

Even if there had really been, in the constitution, two such con- 
tradictory guaranties, as one of liberty or republicanism in every 
State of the Union, and another of s|avery in every State where 
one portion of the people might succeed in enslaving the rest, one 
of these guaranties must have given way to the other — for, being 
plainly inconsistent with each other, they could not have stood 
together. And it might safely have been left either to legal or to 
moral rules to determine which of the two should prevail — 
whether a provision to perpetuate slavery should triumph over a 
guaranty of freedom. 

But it is constantly asserte<l, in substance, that there is " no 
'propriety " in the general government's interfering in the local 
governments of the States. Those who make this assertion ap- 
pear to regard a State as a single individual, capable of managing 
his own affairs, and of course unwilling to tolerate the intermed- 
dling of others. But a State is not an individual. It is made up 
of large numbers of individuals, each and all of whom, amid the 
intestine mutations and strifes to which States are subject, are 
liable, at some time or other, to be trampled upon by tlie strongest 
party, and may therefore reasonably choose to secure, in advance, 



THE CONSTITUTION OF THE UNITED STATES. 107 

some external protection against such emergencies, by making 
reciprocal contracts with other people similarly exposed in the 
neighboring States. Such contracts for mutual succor and pro- 
tection, are perfectly fit and proper for any people who are so 
situated as to be able to contribute to each other's security. They 
are as fit and proper as any other political contracts whatever ; 
and are founded on precisely the same principle of combination 
for mutual defence — for what are any of our political contracts 
and forms of government, but contracts between man and man for 
mutual protection against those who may conspire to injure either 
or all of them ? But these contracts, fit and proper between all 
men, are peculiarly appropriate to those, who, while they are 
members of various local and subordinate associations, are, at the 
same time, united for specific purposes under one general govern- 
ment. Such a mutual contract, between the people of all the 
States, is contained in this clause of the constitution. And it 
gives to them all an additional guaranty for their liberties. 

Those who object to this guaranty, however, choose to over- 
look all these considerations, and then appear to imagine that their 
notions of "propriety" on this point, can effectually expunge the 
guaranty itself from the constitution. In indulging this fancy, 
however, they undoubtedly overrate the legal, and perhaps also 
the moral eflfect of such superlative fastidiousness ; for even if 
there were "no propriety" in the interference of the general 
government to maintain a republican form of government in the 
States, still, the unequivocal pledge to that effect, given in the 
constitution, would nevertheless remain an irresistible rebutter to 
the allegation that the constitution intended to guaranty its oppo- 
site, slavery, an oligarchy, or a despotism. It would, therefore, 
entirely forbid all those inferences and implications, drawn by 
slaveholders, from those other phrases, which they quote as guar- 
anties of slavery."*" 

* From whom come these ohjections to the " propriety " of the genera] govern- 
ment's interfering to maintain republicanism in the states ? Do they not come from 
those who have ever hitherto claimed that the general government was bound to 
interfere to put down republicanism 7 And that those who were republicans at the 
north, might with perfect "propriety" and consistency, pledge their assistance to 
the despots of the south, to sustain the worst, the meanest and most atrocious of 
tyrannies ? Yes, from the very same. To interfere to assist one half of the people 
of a state in the cowardly, cruel and fiendish work of crushing the other half into 
the earth, corresponds precisely with their chivalrous notions of " propriety ;" but 
it is insufferable officiousness for them to form any political compacts that will re- 
quire them to interfere to protect the weak against the tyranny of the strong, or to 
maintain justice, liberty, peace and freedom. 



108 THE UNCONSTITUTIONALITY OF SLAVERY. 

But the " propriety," and not only the propriety, but the neces- 
ity of this guaranty, may be maintained on still other grounds. 

One of these grounds is, that it would be impossible, consist- 
•intly with the other provisions of the constitution, that the general 
t^overnnient itself could be republican, unless the State govern- 
■lenls were republican also. For example. The constitution 
/rovides, in regard to the choice of congressional representatives. 
that " the electors in each State shall have the qualifications requi- 
site for electors of the most numerous branch of the State legis- 
lature." It was indispensable to the internal quiet of each State, 
that the same body of electors, who should participate in the suf- 
frage of the State governments, should participate also in the 
suffrage of the national one — and vice versa, that those who 
should participate in the national suffrage, should also participate 
in that of the State. If the general and State constitutions had 
each a different body of electors within each State, it would obvi- 
ously give rise at once to implacable and irreconcilable feuds, that 
would result in the overthrow of one or the other of the govern- 
ments within the State. Harmony or inveterate conflict was the 
only alternative. As conflict would necessarily result in the de- 
struction of one of the governments, harmony was the only mode 
by which both could be preserved. And this harmony could be 
secured only by giving to the same body of electors, suffrage in 
both the governments. 

If, then, it was indispensable to the existence and authority of 
both governments, within the territory of each State, that the 
same body, and only the same body of electors, that were repre 
sented in one of the governments, should be represented in the 
other, it was clearly indispensable, in order that the national one 
should be republican, that the State governments should be repub- 
lican also. Hence the interest which the nation at large have in 
the republicanism of each of the State governments. 

It being necessary that the suffrage under the national govern- 
ment, within each State, should be the same as for the State 
government, it is apparent that unless the several State govern- 
ments were all formed on one general plan, or unless the electors 
of all the States were united in the acknowledgment of some 
general controlling principle, applicable to both governments, it 
would be impossible that they could unite in the maintenance of a 
general government that should act in harmony with the State 
governments ; because the same body of electors, that should sup' 



THE CONSTITUTION OF THE UNITED STATES. 109 

port a despotic government in the State, could not consistently or 
cordially unite, or even unite at all, in the support of a republican 
government for the nation. If one portion of the State govern- 
ments should be republican, like Vermont, where suffrage is open 
to all — and another portion should be oligarchies, like South 
Carolina, and the other slave States — another portion limited 
monarchies, like England — another portion ecclesiastical, like 
that of the Pope of Rome, or that of the ancient Jews — and 
another portion absolute despotisms, like that of Nicholas, in Rus- 
sia, or that of Francia, in Paraguay, — and the same body, ani; 
only the same body, of electors, that sustained each of these 
governments at home, should be represented in the national govern- 
ment, each State would send into the national legislature the 
representatives of its OAvn peculiar system of government ; and 
the national legislature, instead of being composed of the repre- 
sentatives of any one theory, or principle of government, would be 
made up of the representatives of all the various theories of 
government that prevailed in the different States — from the ex- 
treme of democracy t^ the extreme of despotism. And each of 
these various representatives Avould be obliged to carry his local 
principles into the national legislature, else he could not retain the 
confidence of his peculiar constituents. The consequence would 
be, that the national legislature would present the spectacle of a 
perfect Babel of discordant tongues, elements, passions, interests 
and purposes, instead of an assembly, united for the accomplish- 
ment of any agreed or distinct object. 

Without some distinct and agreed object as a bond of union, it 
would obviously be impracticable for any general union of the 
whole people to subsist ; and that bond of union, whateA^er it be, 
must also harmonize with the principles of each of the State 
governments, else there would be a collision between the general 
and state governments. 

Now the great bond of union, agreed upon in the general 
government, was " the rights of man" — expressed in the national 
constitution by the terms " liberty and justice." What other bond 
could have been agreed upon ? On what other principle of 
government could they all have united ? Could they have united 
to sustain the divine right of kings ? The feudal privileges of 
nobles ? Or the supremacy of the Christian, Mahometan, or any 
other church ? No. They all denied the divine right of kings, 
and the feudal rights of nobles ; and they were of all creeds in 
10 



110 THE TJNCONSTITJTIONALITY OF SLAVERY. 

religion. But they were agreed that all men had certain natural, 
inherent, essential and inalienable rights, among which were life, 
liberty, and the pursuit of happiness ; and that the preservation of 
these rights was the legitimate purpose of governments among 
men. They had avowed this principle before the world, had 
fought for it, and successfully defended it, against the mightiest 
power in the world. They had tilled the world with its glory ; 
and it, in turn, had tilled the world with theirs, it had 
also gathered, and was then gathering, choice spirits, and large 
numbers of the oppressed from other nations unto them. And 
this principle — in which were involved the safety, interests and 
rights of each and every one of " the people," who were to unite 
for the formation of the government — now furnished a bond of 
union, that was at once sufficient, legitimate, consistent, honorable, 
of universal application, and having more general power over the 
hearts and heads of all of them, than any other that could be found 
to hold them together. It comported with their theory of the true ob- 
jects of government. This principle, therefore, they adopted as the 
corner-stone of their national government ; and, as a matter of neces- 
sity, all other things, on which this new government was in any 
degree to depend, or which was to depend in any degree upon this 
government, were then made to conform to this principle. Hence 
the propriety of the power given to the general government, of 
" guarantying to every State in the Union a republican form of 
government." Had not this power been given to the general 
government, the majorities in each State might have converted the 
State governments into oligarchies, aristocracies, monarchies or 
despotisms, that should not only have trampled upon the minori- 
ties, and defeated their enjoyment of the national constitution, but 
also introduced such factions and feuds into the national govern- 
ment as would have distracted its councils, and prostrated its 
power. 

But there were also motives of a pecuniary and social, as well 
as political nature, that made it proper that the nation should 
guaranty to the States a republican form of government. 

Commerce was to be established between the people of the 
different States. The commerce of a free people is many times 
more valuable than that of slaves. Freemen produce and consume 
vastly more than slaves. They have therefore more to buy and 
more to sell. Hence the free States have a direct pecuniary 
interest in the civil freedom of all the other States. Commerce 



THE CONSTITUTION OF THE UNITED STATES. Ill 

between free and slave states is not reciprocal or equal. Who can 
measure the increase that would have been made to the industry 
and prosperity of the free States, if all the slaves in the country 
had been freemen, with all the wants and energies of freemen? 
And their masters had had all the thrift, industry and enterprise 
of men who depend upon their own labor, instead of the labor of 
slaves, for their prosperity ? Great Britain thought it policy to 
carry on" a seven years' war against us principally to secure to her- 
self the control and benefits of the tomme'rce of three millions of 
people and their posterity. But we now have nearlj^ or quite the 
same number of slaves within our borders, and yet we think that 
commerce with them and their posterity is a matter with which 
we have no concern ; that there is "tzo propriety" in that "provision 
of the national constitution, which requires that the general gov- 
ernment — which we have invested with the exclusive control of 
all commerce among the several States — should secure to these 
three millions the right of traffic with their fellow-men, and to 
their fellow-men the right of traffic with them, against the imperti- 
nent usurpations and fyranny of subordinate governments, that 
have no constitutional right to interfere in the matter. 

Again. The slave States, in proportion to their population, con- 
tribute nothing like an equal or equitable share to the aggregate of 
national wealth. It would probably be within the truth to say 
that, in proportion to numbers, the people of the free States have 
contributed ten times as much to the national wealth as the people 
of the slave States. Even for such wealth as the culture of their 
great staple, cotton, has added to the nation, the south are indebted 
principally, if not entirely, to the inventive genius of a single 
northern man."^ The agriculture of the slave States is carried on 
with rude and clumsy implements ; by listless, spiritless and 
thriftless lahorers ; and in a manner speedily to wear out the 
natural fertility of the soil, which fertility slave cultivation seldom 
or never replaces. The mechanic arts are comparatively dead 
among them. Invention is utterly dormant. It is doubtful 
whether either a slave or a slave holder has ever invented a single 
important article of labor-saving machinery since the foundation of 
the government. And they have hardly had the skill or enterprise 
to apply any of those invented by others. Who can estimate the 
loss of wealth to the nation from these causes alone ? Yet we 

* Eli Whitney. 



112 THE VNCONSTITUTIONALITY OF SLAVERY. 

of the free States give to the south a share in the incalculable 
wealth produced by our inventions and labor-saving machinery^ 
our steam engines, and cotton gins, and manufacturing machinery 
of all sorts,. and yet say at the same time that we have no interest, 
and that there is " no propriety" in the constitutional guaranty of 
that personal freedom to the people of the south, which would 
enable them to return us some equivalent in kind. 

For the want, too, of an enforcement of this guaranty of a 
republican form of government to each of the States, the popula- 
tion of the country, by the immigration of foreig-ners, has no doubt 
been greatly hindered. Multitudes almost innumerable, who 
would have come here, either from a love of liberty, or to better 
their conditions, and given the country the benefit of their talents, 
mdustry and wealth, have no doubt been dissuaded or deterred 
by the hideous tyranny that rides triumphant in one half of the 
nation, and extends its pestiferous and detested influence over the 
other half. 

Socially., also, we have an interest in the freedom of all the 
States. We have an interest in free personal intercourse with all 
the people living under a common government with ourselves. 
We wish to be free to discuss, with any and all of them, all the 
principles of liberty and all the interests of humanity. We wish, 
when we meet a fellow-man, to be at liberty to speak freely with 
him of his and our condition ; to be at liberty to do him a service ; 
to advise with him as to the means of improving his condition ; 
and, if need be, to ask a kindness at his hands. But all these 
things are incompatible with slavery. Is this such a union as we 
bargained for ? Was it " nominated in the bond," that we should 
b*e cut off from these the common rights of human nature ? If so, 
point to the line and letter, where it is so written. Neither of 
them are to be found. But the contrary is expressly guarantied 
against the power of both the governments, state and national; for 
the national government is prohibited from passing any law 
abridging the freedom of speech and the press, and the state 
governments are prohibited from maintaining any other than a 
republican form of government, which of course implies the same 
freedom. 

The nation at large have still another interest in the republican- 
ism of each of the States ; an interest, too, that is indicated in the 
same section n which this republicanism is guarantied. This 
interest results from the fact that the nation are pledged to " pro- 



THE CONSTITUTION OF THE UNITED STATES. 113 

ect" each of the States " against domestic violence." Was there 
no account taken — in reference either to the cost or the principle 
of this undertaking — as to what might be the character of the 
State governments, which we are thus pledged to defend against 
the risings of the people ? Did we covenant, in this clause, to 
wage war against the rights of man ? Did we pledge ourselves 
that those, however few, who might ever succeed in getting the 
government of a State into their hands, should thenceforth be 
recognized as the legitimate power of the Slate, and be entitled to 
the whole force of the general government to aid them in subject- 
ing the remainder of the people to the degradation and injustice 
of slavery? Or did the nation undertake only to guaranty the 
preservation of-" a republican form of government" against the 
violence of those who might prove its enemies ? The reason of 
the thing, and the connexion, in which the two provisions stand 
in the constitution, give the answer. 

We have yet another interest still, and that no trivial one, in 
the republicanism of the State governments ; an interest indicated, 
too, like the one last mentioned, in the very section in which this 
republicanism is assured. It relates to the defence against inva- 
sion. The general government is pledged to defend each of the 
States against invasion. Is it a thing of no moment, whether we 
have given such a pledge to free or to slave States ? Is there no 
difference in the cost and hazard of defending one or the other ? 
Is it of no consequence to the expense of life and money, involved 
in this undertaking, whether the people of the State invaded shall 
be united, as freemen naturally will be, as one man against the 
enemy ? Or whether, as in slave States, half of them shall be 
burning to join the enemy, with the purpose of satisfying with 
blood the long account of wrong that shall have accrued against 
their oppressors? Did Massachusetts — who during the war of 
the revolution furnished more men for the common defence, than 
all the six southern States together — did she, immediately on the 
close of that war, pledge herself, as the slave holders would have 
it, that she would lavish her life in like manner again, for "the 
defence of those whose wickedness and tyranny in peace should 
necessarily multiply their enemies and make them defenceless in 
war ? If so, on what principle, or for what equivalent, did she do 
it ? Did she not rather take care that the guaranty for a republi- 
can government should be inserted in the same paragraph with 
that for protection against invasion, in order that both the principle 
10* 



114 THE UNCONSTITUTIONALITY OF SLAVERY. 

and the extent of the liability she incurred, might distinctly 
appear. 

The nation at large, then, as a political community under the 
constitution, have both interests and rights, and both of the most 
vital character, in the republicanisin of each of the State govern- 
ments. The guaranty given by the national constitution, securing 
such a government to each of the States, is therefore neither 
officious nor impertinent. On the contrary, this guaranty was a 
siiie qua non to any rational contract of union ; and the enforce- 
ment of it is equally indispensable, if not to the continuance of the 
union at all, certainly to its continuance on any terms that are 
either safe, honorable or equitable for the north. 

This guaranty, then, is not idle verbiage. It is full of meaning. 
And that meaning is not only fatal to slavery itself, but it is fatal 
also to all those pretences, constructions, surmises and implica- 
tions, by which it is claimed that the national constitution sane- 
lions, legalizes, or even tolerates slavery. 



CHAPTER IX. 

THE INTENTIONS OF THE CONVENTION. 

The intentions of the framers of the constitution, (if we could 
have, as we cannot, any legal knowledge of them, except from the 
words of the constitution,) have nothing to do with fixing the legal 
meaning of the constitution. That convention were not delegated 
to adopt or establish a constitution ; but only to consult, devise 
and recommend. The instrument, when it came from their hands, 
was a mere proposal, having no legal force or authority. It finally 
derived all its validity and obligation, as a frame of government, 
from its adoption by the people at large. "* Of course the inten- 
tions of the people at large are the only ones, that are of any 
importance to be regarded in determining the legal meaning of 
the ins'.rument. And their intentions are to be gathered entirely 
from the words, which they adopted to express them. And their 
Intentions must be presumed to be just what, and only what the 
words of the instrument legally express. In adopting the consti- 

* The Supreme Court say, " The instrument, when it came from their hands, 
(that is, the hands of the convention.) was a mere proposal, without obligation or 
pretension to it." " The people were at perfect liberty to accept or reject it; and 
iheir act \va.s final." — MCidlock vs. Maryland,— A Whcatcn 403 — 4. 



THE INTENTIONS OF THE CONVENTION. 115 

lution, the people acted as legislators, in the highest sense in 
which that word can be applied to human lawgivers. They were 
establishing a law that was to govern both themselves and their 
government. And their intentions, like those of other legislators, 
are to be gathered from the words of their enactments. Such is 
the dictate of both law and common sense.* The instrument had 



* The Supreme Court of the United States say : 

" The intention of the instrument must prevail : this intention must be collected 
from its iBords." — Ogden\s. Saunders, — 12 Wheaton,Z'3i2. 

" The intention of the legislature is to be searched for in the words which the 
legislature has employed to convey it." — Schr. Paulina's Cargo vs. United States, 
— 7 Crunch, 60. 

Judge Story, in giving an opinion upon the bankrupt act, replies as follows to ar 
argument analogous to that, which is often drawn from the debates of the con 
rention, in opposition to the language of the constitution itself He says : 

" At the threshold of the argument, we are met with the suggestion, that when 
the (Bankrupt) act was before Congress, the opposite doctrine was then maintainei' 
in the House of Representatives, and it was confidently stated, that no such juris 
diction was conferred by the act, as is now insisted on. What passes in Congress 
upon the discussion of a bill can hardly become a matter of strict judicial inquiry ; 
and if it were, it could scarcely be affirmed, that the opinions of a few members, 
expressed either way, are to be considered as the judgment of the whole House, or 
even of a minority. But, in truth, little reliance can or ought to be placed upon 
such sources of interpretation of a statute. The questions can be, and rarely are, 
there debated upon strictly legal grounds, with a full mastery of the subject and ot 
the just rules of interpretation. The arguments are generally of a mixed character, 
addressed by way of objection or of support, rather with a view to carry or defeat 
a bill, than with the strictness of a judicial decision. But if the House entertained 
one construction of the language of the bill, von constat, that the same opinion was 
entertained either by the Senate or by the President ; and their opinions are cer- 
tainly, in a matter of the sanction of laws, entitled to as great weight as the other 
branch. But in truth, courts of Justice are not at liberty to look at considerations 
of this sort. We are bound to interpret the act as we find it, and to make such an 
interpretation as its language and its apparent objects require. We must take it 
to be true, that the legislature intend precisely what they say, and to the extent 
which the provisions of the act require, for the purpose of securing their just opera- 
tion and effect. Any other course would deliver over the court to interminable 
doubts and difficulties ; and ice should be compelled to guess what was the law, from 
the loose commentaries of different debates, instead of the precise enactments of the 
statute. Nor have there been wanting illustrious instances of great minds, which, 
after they had, as legislators, or commentators, reposed upon a short and hasty 
opinion, have deliberately withdrawn from their first impressions, when they came 
upon the judgment seat to re-examine the statute or law in its full bearings.'" — 
Mitchell'vs. Great Works Milling and Manufacturing Company. Story's Circuit 
Court Reports, Vol. 2, page 653. 

If the intentions of legislatures, who are invested with the actual authority of 
prescribing laws, are of no consequence otherwise than as they are expressed in the 
language of their statutes, of how much less consequence are any unexpressed 
intentions of the framers of the constitution, who had no authority to establish a 
constitution, but only to draft one to be offered to the people for their voluiitar" 
adoption or rejection. 



116 THE UNCONSTITUTIONALITY OF SLAVERY. 

been reported by their committee, the convention. But the peopl ' 
did not ask this committee what was the legal meaning of the 
instrument reported. They adopted it, judging for themselves of 
its legal meaning, as any other legislative body vvoul^d have done. 
The people at large had not even an opportunity of consultation 
with the members of the convention, to ascertain their opinions. 
And even if they had consulted them, they would not have been 
bound at all by their opinions. But being unable to consult them, 
they were compelled to adopt or reject the instrument, on their 
own judgment of its meaning, without any reference to the 
opinions of the convention. The instrmnent, therefore, is now to 
be regarded as expressing the intentions of the people at large ; 
and not the intentions of the convention, if the convention had 
any intentions differing from the meaning which the law gives to 
the words of the instrument. 

But why do the partisans of slavery resort to the debates of the 
convention for evidence that the constitution sanctions slavery ? 
Plainly for no other reason than because the words of the instru- 
ment do not sanction it. But can the intentions of that conven- 
tion, attested only by a mere skeleton of its debates, and not by 
any impress upon the instrument itself, add anything to the words, 
.or to the legal meaning of the words of the constitution ? Plainly 
not. Their intentions are of no more consequence, in a legiA 
point of view, than the intentions of any other equal number of 
the then voters of the country. Besides, as members of the con- 
vention, they were not even parties to the instrument ; and no 
evidence of their intentions, at that time, is applicable to the case* 
They became parties to it only by joining with the rest of the 
people in its subsequent adoption ; and they themselves, equally 
with the rest of the people, must then be presumed to have 
adopted its legal meaning, and that alone — notwithstanding any- 
thing they may have previously said. What absurdity then is it 
to set up the opinions expressed in the convention, and by a few 
only of its members, in opposition to the opinions expressed by 
the whole people of the country, in the constitution itself. 

But notwithstanding the opinions expressed in the convention 
by some of the members, we are bound, as a matter of law, to 
presume that the convention itself, in the aggregate, had no inten- 
tion of sanctioning slavery — and why? Because, after all their 
debates, they agreed upon an instrument that did not sanction it. 
This was confessedly the result in which all their delates termi* 



THE INTENTIONS OF THE CONVENTION. 117 

nated. This instrument is also the only authentic evidence of 
iheir intentions. It is subsequent in its date to all the other evidence. 
It comes to us, also, as none of the other evidence does, signed 
with tkeir own hands. And is this to be set aside, and the con- 
stitution itself to be impeached and destroyed, and free govern- 
ment overturned, on the authority of a few meagre snatches of 
argument, intent or opinion, uttered by a few only of the mem- 
bers ; jotted down by one of them, (Mr. Madison,) merely for his 
own convenience, or from the suggestions of his own mind ; and 
only reported to us fifty years afterwards by a posthumous pub- 
lication of his papers ? If anything could excite the utter contempt 
of the people of this nation for the miserable subterfuges, to which 
the advocates of slavery resort, it would seem that their offerhig 
such evidence as this in support of their cause, must do it. And 
yet these, and such as these mere fragments of evidence, all 
utterly inadmissible and worthless in their kind, for any legal 
purpose, constitute the warp and the woof, the very si7ie qua non 
of the whole argument for slavery. 

Did Mr. Madison, when he took his oath of office, as President 
of the United States, swear to support these scraps of debate, 
which he had filed away among his private papers? — Or did he 
swear to support that written instrument, which the people of the 
country had agreed to, and which was known to them, and to all 
the world, as the constitution of the United States?* 



* " Elliot's Etebates," so often referred to, are, if possible, a more miserable 
authority than Mr. Madison's notes. He seems to have picked up the most of them 
from the newspapers of the day, in which they were reported by nobody now pro- 
bably knows whom. In his preface to his first volume, containing- the debates in 
the Massachusetts and New York conventions, he says : 

" In the compilation of this volume, care has been taken to search into contem- 
porary publications, in order to make the work as perfect as possible ; still, however, 
the editor is sensible, from the daily experience of newspaper reports of the pres- 
ent time, that the sentiments they contain may, in some instances, have been in- 
accurately taken down, and in others, probably too faintly sketched, fully to gratify 
the inquisitive politician." He also speaks of them as "rescued from the ephemeral 
prints of that day, and now, for the first time, presented in a uniform and durable 
form." 

In the preface to his second volume, v/hich is devoted to the Virginia convention, 
he says the debates were reported by an able stenographer, David Robertson ; and 
then quotes the following from Mr. Wirt, in a note to the Life of Patrick Henry : 

" From the skill and ability of the reporter, there can be no doubt that the sub- 
stance of the debates, as well as their general course, are accurately preserved." 

In his preface to the third volume, embracing the North Carolina and Pennsylva- 
aia conventions, he says : 

" The^rsi of the two North Carolina conventions is contained in this volume ; 



118 THE UNCONSTITUTIONALITY OF SLAVERY 

But even if tie unexpressed intentions, which these n* tes oi 
debate ascribed to certain members, had been participated in by 
the whole convention, we should have had no right to hold the 
people of the country at large responsible for them. This conven- 
tion sat with closed doors, and it was not until near fifty years 
after the people had adopted the constitution itself, that these pri- 
vate intentions of the framers authentically transpired. And even 
now all *he evidence disclosed implicates, directly and ahsohitely, 
but few of the members — not even all from the slaveholding 
states. The intentions of all the rest, we have a right to presume, 
concurred with their votes and the words of the instrument ; and 
they had therefore no occasion to express contrary ones in debate. 

But suppose that all the members of the convention had partici- 
pated in these intentions — what then? Any forty or fifty men, 
like those who framed the constitution, may now secretly concoct 
another, that is honest in its terms, and yet in secret conclave 
confess to each other the criminal objects they intended to accom- 
plish by it, if its honest character should enable them to secure for 
it the adoption of the people. — But if the people should adopt 
such constitution, would they thereby adopt any of the criminal 
and secret purposes of its authors ? Or if the guilty confessions 
of these conspirators should be revealed fifty years afterwards, 
would judicial tribunals look to them as giving the government 
any authority for violating the legal meaning of the words of such 
constitution, and for so construing them as to subserve the crim- 
inal and shameless purpose of its originators ? 

The members of the convention, as such, were the mere 
scriveners of the constitution ; and their individual purposes, opin- 



).he second convention, it is believed, was neither systematically reported nor print- 
ed.^' The debates in tiie Pennsylvania convention, that have been preserved, it 
appears, are on one side only ; a search into the contemporary publications of the 
day, has been unsuccessful to furnish us with the other side of the question." 

In his preface to the fourth volume, lie says : 

" In compiling the opinions, on constitutional questions, delivered in Congress, 
by some of the most enlightened senators and representatives, the files of the New 
Vork and Philadelphia newspapers, from 17S9 to ISOO, had to be relied on ; from 
the latter period to the present, the National Intelligencer is the authority con 
suited for the desired information." 

It is from such stuff as this, collected and published thirty-five and forty years 
after the constitution was adopted — stuff' very suilatile for constitutional dreams to 
be made of — that our courts and people now make their constitutional law, in 
preference to adopting the law of the constitution itself. In this way they manu 
"acture law strong enough to Mud three millions of men in slavery. 



THE INIBHTIONS OF THE CONVENTION. 119 

ions or expressions, then uttered in secret cabal, though now 
revealed, can no more be evidence of the intentions of the people 
who adopted the constitution, than the secret opinions or express- 
ions of the scriveners of any other contract can be offered to 
prove the intentions of the true parties to such contract. As fram- 
ers of the constitution, the members of the convention ^ve to ii 
no validity, meaning, or legal force. They simply drafted it, and 
offered it, such as it legally might be, to the people for their adop- 
tion or rejection. The people, therefore, in adopting it, had no 
reference whatever to the opinions of the convention. They had 
no authentic evidence of what those opinions were. They looker 
simply at the instrument. And they adopted even its legal mean- 
ing by a bare majority. If the instrument had contained any 
tangible sanction of slavery, the people, in some parts of the country 
certainly, would sooner have had it burned by the hands of the 
common hangman, than they would have adopted it, and thus sold 
themselves as pimps to slavery, covered as they were with the 
scars they had received in fighting the battles of freedom. And 
the members of the convention knew that such was the feeling of a 
'aige portion of the people ; and for that reason, if for no other, 
they dared insert in the instrument no legal sanction of slavery. 
They chose rather to trust to their craft and influence to corrupt 
the government, (of which they themselves expected to be impor- 
tant members,) after the constitution should have been adopted, 
rather than ask the necessary authority directly from the people. 
And the success they have had in corrupting the government, 
proves that they judged rightly in presuming that the government 
would be more flexible than the people. 

For other reasons, too, the people should not be charged with 
designing to sanction any of the secret intentions of the conven- 
tion. When the States sent delegates to the convention, no 
avowal was made of any intention to give any national sanction to 
slavery. The articles of confederation had given none ; the then 
•existing State constitutions gave none ; and it could not have been 
reasonably anticipated by the people that any would have been 
either asked for or granted in the new constitution. If such a 
purpose had been avowed by those who were at the bottom of the 
movement, the convention would doubtless never have been held. 
The avowed objects of the convention were of a totally different 
character. Commercial, industrial and defensive motives were '.he 
prominent ones avowed- When, then, the constitution came fum 



120 THE UNCONSTITUTIONALITY OF SLAVERY, 

the hands of such a convention, unstained with any legal or tangi 
ble sanction of slavery, were the people — who, from the nature of 
the case, could not assemble to draft one for themselves — bound 
either to discard it, or hold themselves responsible for all the 
secret intentions of those who had drafted it ? Had they no power 
to adopt its legal meaning, and that alone? Unquestionably they 
had the pov/er ; and, as a matter of law, as well as fact, it is 
equally unquestionable that they exercised it. Nothing else than 
the constitution, as a legal instrument, was offered to them for 
their adoption. Nothing else was legally before them that they 
could adopt. Nothing else, therefore, did they adopt. 

This alleged design, on the part of the convention, to sanction 
slavery, is obviously of no consequence whatever, unless it can be 
transferred to the people who adopted the constitution. Has any 
such transfer ever been shown ? Nothing of the kind. It may 
have been known among politicians, and may have found its 
way into some of the State conventions. But there probably is 
not a tittle of evidence in existence, that it was generally kno\vn 
among the mass of the people. And, in the nature of things, it 
was nearly impossible that it should have been known by them. 
The national convention had sat with closed doors. Nothing was 
knoAvn of their discussions, except what was personally reported 
by the members. Even the discussions in the State conventions 
could not have been known to the people at large ; certainly not 
until after the constitution had been ratified by those conventions. 
The ratification of the instrument, by those conventions, followed 
close on the heels of their discussions. — The population mean- 
while was thinly scattered over the country. The public papers 
were few, and small, and far between. They could not everj 
make such reports of the discussions of public bodies, as newspa- 
pers now do. The consequence must have been that the people 
:it large knew nothing of the intentions of the framers of the con- 
stitution, but from its words, until after it was adopted. Never- 
theless, it is to be constantly borne in mind, that even if the people 
had been fully cognizant of those intentions, they would not therefore 
have adopted them, or become at all responsible for them, so long 
as the intentions themselves were not incorporated in the instru- 
ment. Many selfish, ambitious and criminal purposes, not 
expressed in the constitution, were undoubtedly intended to be 
accomplished by one and another of the thousands of unprincipled 
politicians, that would naturally swarm around the birth-place 



THE INTENTIONS OF THE CONVENTION. 121 

and assist at the nativity of a new and splendid government. 
But the people are not therefore responsible for those purposes ; 
nor are those purposes, therefore, a part of the constitution ; nor is 
its language to be construed with any view to aid their accom- 
plishment. 

But even if the people intended to sanction slavery by adopting 
the intentions of the convention, it is obvious that they, like the 
convention, intended to use no language that should legally con- 
vey that meaning, or that should necessarily convict them of that 
intention in the eyes of the world. — They, at least, had enough 
of virtuous shame to induce them to conceal this intention under 
the cover of language, \vhose legal meaning would enable them 
always to aver, 

" Thou canst not say I did it." 

The mtention, therefore, that the judiciary should construe 
certain language into an authority for slavery, when such is not 
the legal meaning of the language itself, cannot be ascribed to the 
people, except upon the supposition that the people presumed their 
judicial tribunals would have so much less of shame than they 
themselves, as to volunteer to carry out these their secret wishes, 
by going beyond the words of the constitution they should be 
sworn to support, and violating all legal rules of construction, and 
all the free principles of the instrument. It is true that the judi- 
ciary, (whether the people intended it or not,) have proved the-\i- 
selves to be thus much, at least, more shameless than the pe pie, 
or the convention. Yet that is not what ought to ha\ e been 
expected of judicial tribunals. And whether such were eally the 
intention of the convention, or the people, is, at best a matter of 
conjecture and history, and not of law, nor of any e-i^dence cogniz 
able by any judicial tribunal. 

Why should we search at all for the inte^itions, either of th< 
convention, or of the people, beyond the words which both the con- 
vention and the people have agreed upon to express them ? What 
is the object of written constitutions, and written statutes, and 
written contracts ? Is it not that the meaning of those who make 
them may be known with the most absolute precision of which 
language is capable ? Is it not to get rid of all the fraud, and 
uncertainty, and disagreements of oral testimony ? Where would 
be our constitution, if, instead of its being a AATitten instiument, it 
had been merely agreed upon orally by the members of the conven- 
tion ? And by them only orally reported to the people ? And 
11 



122 THE UNCONSTITUTIONALITY OF SLAVERY. 

only this oral report of it had been adopted by the people ? And 
a]] our evidence of what it really was, had rested upon reports 
of what Mr. A. and B., members of the convention, had been 
heard to say ? Or upon Mr. Madison's notes of the debates of the 
convention ? Or upon the oral reports made by the several 
members to their respective constituents, or to the respective State 
conventions ? Or upon flying reports of the opinions which a 
few individuals, out of the whole body of the people, had formed 
of it when they adopted it ? No two of the members of the con- 
vention would probably have agreed in their representations of 
what the constitution really was. No two of the people would 
have agreed in their Uliderstanding of the constitution when they 
adopted it. And the ;i>nsequence would have been that we 
should really have haa no constitution at all. Yet there is as 
much ground, both in reason and in law, for thus throwing aside 
the whoLe of the written instrument, and trusting entirely to these 
other sources for evidence of what any part of the constitution 
really is, as there is for throwing aside those particular portions 
of the written instrument, which bear on slavery, and attempting 
to supply their place from such evidence as these other sources 
may chance to furnish. And yet, to throw aside the written instru- 
ment, so far as its provisions are prohibitory of slavery, and make 
a new constitution on that point, out of other testimony, is the 
only means, confessedly the only means, by which slavery can be 
n. de constitutional. 

A.d what is the object of resorting to these flying reports for 
evidei. -e, on which to change the meaning of the constitution ? Is 
it to chai <Te the instrument from a dishonest to an honest one ? 
from an unj 'st to a just one? No. But directly the reverse — 
and solely that dishonesty and injustice may be carried into effect. 
A purpose, for wi.'ch no evidence of any kind whatever could be 
admitted in a court o^ justice. 

Again. If the prin^'ple be admitted, that the meaning of the 
constitution can be changed, on proof being made that the scrive- 
ners or framers of it had secr'^t and knavish intentions, which do 
not appear on the face of the instrument, then perfect license is 
given to the scriveners of constitutions to contrive any secret 
scheme of villany they may please, and impose it upon the people 
as a system of government, under cover of a written instrument 
that is so plainly honest and just in its terms, that the people 
readily agree to it. Is such a principle to be admitted in a 



THE PRACTICE OF THE GOVERNMENT. . 23 

country where the people claim the prerogative of establishing 
their own government, and deny the right of anybody to impose 
a government upon them, either by force, or fraud, or against their 
will ? 

Finally. The constitution is a contract ; a written contract, 
consisting of a certain number of precise words, to which, and to 
which only, all the parties to it have, in theory, agreed. IMani- 
festly neither this contract, nor the meaning of its words, can be 
changed, without the consent of all the parties to it. Nor can it 
be changed on a representation, to be made by any number of 
them less than the whole, that they intended anything different 
from what they have said. To change it, on the representation 
of a part, without the consent of the rest, would be a breach of 
contract as to all the rest. And to change its legal meaning, 
without their consent, would be as much a breach of the contract, 
as to change its words. If there were a single honest man in the 
nation, who assented, in good faith, to the honest and legal meaning 
of the constitution, it would be unjust and unlawful towards him 
to change the meaning of the instrument so as to sanction slavery, 
eren though every other man in the nation should testify that, in 
agreeing to the constitution, he intended that slavery should be 
sanctioned. If there were not a single honest man in the nation, 
vvho adopted the constitution in good faith, and with the intent 
that its legal meaning should be carried into effect, its legal mean- 
ing would nevertheless remain the same ; for no judicial tribunal 
could lawfully allow the parties to it to come into court and allege 
their dishonest intentions, and claim that they be substituted for 
the legal meaning of the words of the instrument. 



CHAPTER X. 

THE PRACTICE OF THE GOVERNMENl. 

The practice of the government, under the constitution, has not 
altered the legal meaning of the instrument. It means now what 
it did before it was ratified, when it was first offered to the people 
for their adoption or rejection. One of the advantages of a written 
constitution is, that it enables the people to see what its charactel 
is before they adopt it ; and another is, that it enables them to see 



124 THE UNCONSTITUTIONALITY OF SLAVERY. 

after they have adopted it, whether the government adheres to it, 
or departs from it. Both these advantages, each of which is 
indispensable to liberty, would be entirely forfeited, if the legal 
meaning of a written constitution were one thing when the instru- 
ment was offered to the people for their adoption, and could then 
be made another thing by the government after the people had 
adopted it. 

It is of no consequence, therefore, what meaning the govern- 
ment have placed upon the instrument ; but only what meaning 
they were hound to place upon it from the beginning. 

The only question, then, to be decided, is, what was the mean- 
ing of the constitution, as a legal instrument^ when it was first 
drawn up, and presented to the people, and before it was adopted 
by them ? 

To this question there certainly can be but one answer. There 
is not room for a doubt or an argument, on that point, in favor of 
slavery. The instrument itself is palpably a free one throughout, 
in its language, its principles, and all its provisions. As a legal 
instrument, there is no trace of slavery in it. It not only does 
not sanction slavery, but it does not even recognize its existence. 
More than this, it is palpably and wholly incompatible with 
slavery. It is also the supreme law of the land, in contempt of 
any State constitution or law that should attempt to establish 
slavery. 

Such was the character of the constitution when it was ofTered 
to the people, and before it was adopted. And if such was its 
character then, such is its character still. It cannot have been 
changed by all the errors and perversions, intentional or uninten- 
• onal, of which the government may have since been guilty. 



CHAPTER XI. 

THE UNDERSTANDING OF THE PEOPLE. 

Although the inquiry may be of no legal importance, it may 
nevertheless be one pertinent to the subject, whether it be matter 
of history even — to say nothing of legal proof — that the people 
of the country did really understand or believe that the constitu- 
tion sanctioned slavery ? Those who make the assertion are 



THE UNDERSTANDING OF THE PEOPLE. 125 

bound to prove it. The presumption is against them. Where is 
their contrary history ? 

They will say that a part of the people were actually slavehold- 
ers, and that it is unreasonable to suppose they would have agreed 
to the constitution, if they had understood it to be a free one. 

The answer to this argument is, that the actual slaveholders 
were few in number compared with ihe whole people ; comprising 
probably not more than one eighth or one sixth of the voters, and 
one fortieth or one thirtieth of the whole population. They were 
so few as to be manifestly incapable of maintaining any separate 
political organization ; or even of holding their slave property, 
except under the sufferance, toleration and protection of the non- 
slaveholders. They were compelled, therefore, to agree to any 
political organization, which the non-slaveholders should determine 
on. This was at that time the case even in the strongest of the 
slaveholding States themselves. In all of them, without excep- 
tion, the slaveholders were either obliged to live, or from choice 
did live, under free constitutions. They, of course, held their 
slave property in defiance of their constitutions. They were 
enabled to do this through the corrupting influence of their wealth 
and union. Controlling a large proportion of the wealth of their 
States, their social and political influence was entirely dispropor- 
tionate to their numbers. They could act in concert. They 
could purchase talent by honors, offices and money. Being 
always united, while the non-slaveholders were divided, they 
could turn the scale in elections, and fill most of the offices with 
slaveholders. Many of the non-slaveholders doubtless were poor, 
dependent and subservient, (as large portions of the non-slave- 
holders are now in the slaveholding States,) and lent themselves 
to the support of slavery almost from necessity. By these, and 
probably by many other influences that we cannot now under- 
stand, they were enabled to maintain their hold upon their slave 
property in defiance of their constitutions. It is even possible that 
the slaveholders themselves did not choose to have the subject of 
slavery mentioned in their constitutions ; that they were so fully 
conscious of their power to corrupt and control their governments, 
that they did not regard any constitutional provision necessary for 
their security ; and that out of mere shame at the criminality of 
the thing, and its inconsistency with all the princip es the country 
had been fighting for and proclaiming, they did net wish it to be 

named. 

11# 



126 THE UNCONSTITUTIONALITY OF SLAVERY. 

But whatever may have been the cause of the fact, the fact 
itself is conspicuous, that from some cause or other, either with the 
consent of the slaveholders, or in defiance of their power, the con- 
stitutions of every one of the thirteen States were at that time free 
ones. 

Now is it not idle and useless to pretend, when even the strong- 
est slaveholding States had free constitutions — when not one of 
the separate States, acting for itself, would have any but a free 
constitution — that the whole thirteen, when acting in unison, 
should concur in establishing a slaveholding one ? The idea is 
preposterous. The single fact that all the State constitutions were 
at that time free ones, scatters forever the pretence that the major- 
ity of the people of all the Stales either intended to establish, or 
could, have been induced to establish, any other than a free one for 
the nation. Of course it scatters also the pretence that they 
believed or understood that they were establishing any but a 
free one. 

There very probably may have been a general belief among the 
people, that slavery would for a while live on, on sufferance ; that 
the government, until the nation should have become attached to 
the constitution, and cemented and consolidated by the habit of 
union, would be too weak, and too easily corrupted by the innu- 
merable and powerful appliances of slaveholders, to wrestle with 
and strangle slavery. But to suppose that the nation at large did 
not look upon the constitution as destined to destroy slavery, 
whenever its principles should be carried into full effect, is obvi- 
ously to suppose an intellectual impossibility ; for the instrument 
was plain, and the people had common sense ; and those two facts 
cannot stand together consistently with the idea that there was 
any general, or even any considerable misunderstanding of its 
meaning. 



CHAPTER XII. 

THE STATE CONSTITUTIONS OF 1845. 

Of ail the State constitutions existing at this time , 1845, (ex- 
cepting that of Florida, which I have not seen,) not one of them 
contains provisions that are sufficient, (or that would be sufficient 



THE STATE CONSTITUTIONS OF 1845. 1?7 

if not restrained by the constitution of the United States,) to author- 
ize the slavery that exists in the States. The material defic'ency 
in all of them is, that they neither designate, nor give the legisla- 
tures any authority to designate the persons, who may be made 
slaves. Without such a provision, all their other provisions in 
regard to slaves are nugatory, simply because their application is 
legally unknown. They would apply as well to whites as to 
blacks, and would as much authorize the enslavement of whites as 
of blacks. 

We have before seen that none of the State constitutions, that 
were in existence in 17S9, recognized slavery at all. Since that 
time, four of the old thirteen States, viz., Maryland, North Caro- 
lina, South Carolina and Georgia, have altered their constitutions 
so as to make them recognize slavery ; yet not so as to proA'ide 
for any legal designation of the persons to be made slaves. 

The constitution of South Carolina has a provision that implies 
that some of the slaves, at least, are " negroes j" but not that all 
slaves are negroes, nor that all negroes are slaves. The pro- 
vision, therefore, amounts to nothing for the purposes of a consti- 
tutional designation of the persons who may be made slaves. 

The constitutions of Tennessee and Louisiana make no direct 
mention of slaves ; and have no provisions in favor of slavery, 
unless the general one for continuing existing laws in force, be 
such an one. But both have specific provisions inconsistent with 
slavery. Both purport to be established by " the people ;" both 
have provisions for the writ of habeas corpus. Indeed, the con- 
stitutions of most of the slave States have provisions for this writ, 
which, as has been before shown, denies the right of property in 
man. That of Tennessee declares also " that all courts shall be 
open, and every man, for an injury done him in his lands, goods, 
person or reputation, shall have remedy by due course of law, and 
right and justice administered without sale, denial or delay.'" 
Tennessee also was formerly a part of North Carolina ; Avas set 
off from her while the constitution of North Carolina was a free 
one. Of course there has never been any legal slavery in Ten 
nessee. 

The constitutions of the States of Kentucky, Missouri, Arkan- 
sas, Mississippi, and Alabama, all have provisions about slaves ; 
yet none of them tell us who may be slaves. Some of them 
mdeed provide for the admission into their State of such persons 
as are slaves under the laws, (which of course means only the 



128 THE UNCONSTITUTIONALITY OF SLAVERY. 

constitutional laws,) of other States. But when we go to those 
other States, we find that their constitutions have made no desig- 
nation of the persons who may be made slaves ; and therefore we 
are as far from finding the actual persons of the slaves as we were 
before. 

The principal provision, in the several State constitutions, 
recognizing slavery, is, in substance, this, that the legislature shall 
have no power to emancipate slaves without the consent of their 
owners, or without making compensation. But this provision is 
of no avail to legalize slavery, for slavery must be constitutionally 
established, before there can be any legal slaves to be emancipated ; 
and it cannot be established without describing the persons who 
may be made slaves. 

Kentucky was originally a part of Virginia, and derived her 
slaves from Virginia. As the constitution of Virginia was always 
a free one, it gave no authority for slavery in that part of the 
State which is npw Kentucky. Of course Kentucky never had 
any legal slavery. 

Slavery was positively prohibited in all the States included in 
the Louisiana purchase, by the third article of the treaty of cession 
— which is in these words : — 

Art. 3. "The inhabitants" (that is, all the inhabitants,) "of the 
ceded territory shall be incorporated in the Union of the United 
States, and admitted as soon as possible, accoi'ding to the prin- 
ciples of the federal constitution, to the enjoyment of all the rights, 
advantages, and immunities of citizens of the United States ; and, 
in the mean time, they shall be maintained and protected in the 
free enjoyment of their liberty, property, and the religion which 
they profess." 

The cession of Florida to the United States was made on the 
same terms. The words of the treaty, on this point are as fol- 
lows : — 

" Art. 6. The inhabitants of the territories, which his Catholic 
majesty cedes to the United States by this treaty, shall be incor- 
porated in the Union of the United States, as soon as may be 
consistent with the principles of the federal constitution, and 
admitted to the enjoyment of all the privileges, rights and immu- 
nities of the citizens of the United States." 

To allow any of the " inhabitants," included in those treaties, to 
be held as slaves, or denied the rights of citizenship under the 
United States constitution, is a plain breach of the treaties. 



THE CHILDREN OF SLAVES ARE BORN FREE. 129 

The constitutions of some of the slave States have provisions 
like this, viz., that all laws previously in force, shall remain in 
force until repealed, unless repugnant to this constitution. But I 
think there is no instance, in which the slave acts, then on their 
statute books, could be perpetuated by this provision — and for two 
reasons ; 1st. These slave acts were previously unconstitutional, 
and therefore were not, legally speaking, "laws in force."* 2d. 
Every constitution, I think, that has this provision, has one or 
more other provisions that are "repugnant" to the slave acts 



CHAPTER XIII. 

THE CHILDREN OF SLAVES ARE BORN FREE. 

The idea that the children of slaves are necessarily born slaves, 
or that they necessarily follow that natural law of property, which 
gives the natural increase of property to the owner of the original 
stock, is an erroneous one. 

It is a principle of natural law in regard to property, that a calf 
belongs to the owner of the cow that bore it ; fruit to the owner 
of the tree or vine on which it grew ; and so on. But the princi- 
ple of natural law, which makes a calf belong to the owner of the 
cow, does not make the child of a slave belong to the owner of 
the slave — and Avhy? Simply because both cow and calf are 
naturally subjects of property ; while neither men nor children 
are naturally subjects of property. The law of nature gives no 
aid to anything inconsistent with itself. It therefore gives no aid 
to the transmission of property in man — while it does give aid to 
the transmission of property in other animals and in things. 

Brute animals and things being naturally subjects of property, 
there are obvious reasons why the natural increase should belong 
to the owner of the original stock. But men, not being naturally 
subjects of property, the law of nature will not transmit any right 
of property acquired in violation of her own authority. The law 

* This principle would apply, as we have before seen, where the change was 
from the colonial to a state government. It would also applj' to all cases where the 
change took place, under the constitution of the United States, from a territorial to 
E state government. It needs no argument to prove that all our territorial statutes 
that have purported to authorize slavery, were unconstitutional. 



130 THE UNCONSTITUTIONALITY OF SLAVERY. 

of nature denies all rights not derived from herself. Of course 
she cannot perpetuate or transmit such rights — if rights they can 
he called. 

One important reason why a calf belongs to the owner of the 
cow that bore it, is, that there is no principle of natural law that 
can le opposed to that ownership. For the calf is naturally a 
subject of property, and if it were not given to the owner of the 
cow, it would be lawful for any other person to assume the owner- 
ship. No wrong would be done to the animal by so doing. But 
as man is not naturally a subject of property, and as each separate 
individual is, on principles of natural law, entitled to the control 
of his own person, it is as much a wrong, and as much a violation 
of natural law, to make a slave of the child of a slave, as to make 
a slave of any other person. The natural rights of the child to 
the control of his own person, rise up, from the moment of his 
birth, in opposition to the transmission to him of any ownership, 
which, in violation of natural law, has been asserted to the parent. 

Natural law may be overborne by arbitrary institutions ; but she 
will never aid or perpetuate them. For her to do so, would be to 
resist, and even deny her own authority. It would present the 
case of a principle warring against and overcoming itself. Instead 
of this, she asserts her own authority on the first opportunity. 
The moment the arbitrary law expires by its oviti limitation, 
natural law resumes her reign. If, therefore, the government 
declare A to be a slave, natural law may be practically overborne 
by this arbitrary authority ; but she will not herself perpetuate it 
beyond the person of A — for that would be acting in contradic- 
tion to herself. — She will therefore suffer this arbitrary authori4;y 
to expend itself on the person of A, according to the letter of the- 
arbitrary law : but she will assert her o\vn authority in favor of 
the child of A, to whom the letter of the law enslaving A, does 
not apply. 

Slavery is a wrong to each individual enslaved ; and not merely 
to the first of a series. Natural law, therefore, as much forbids 
the enslaving of the child, as if the wrong of enslaving the parent 
had never been perpetrated. 

Slavery, then, is an arbitrary institution throughout. It depends 
from first to last, upon the letter of the arbitrary law. Natural 
law gives it no aid, no extension, no new application, under any 
circ imstances whatever. Unless, therefore, the letter of the arbi- 



THE CHILDREN OF SLAVES ARE BORN FREE. 131 

trary law explicitly authorize the enslavement of the child, the 
child is born free, though the parent were a slave. 

If the views that have already been taken of our written con- 
stitutions, be correct, no parent has ever yet been legally enslaved 
in this country ; and of course no child. If, however, any one 
thinks he can place his finger upon any constitutional law, that 
has enslaved a parent, let him follow that law, and see whether it 
also expressly authorized the enslavement of the child. If it did 
not, the child would be free. 

It is no new principle that the child of a slave would be born 
free, but for an express law to the contrary. Some of the slave 
codes admit the principle — for they have special provisions that 
the child shall follow the condition of the mother ; thus virtually 
admitting that, but for such a provision, the child would be free, 
though the mother were a slave. 

Under the constitutions of the States and the United States, it 
requires as explicit and plenary constitutional authority, to malve 
slaves of the children of slaves, as it would to make slaves of any- 
body else. Is there, in any of the constitutions of this country, 
any general authority given to the governments, to make slaves 
of whom they please ? No one will pretend it. Is there, then, 
any particular authority for making slaves of the children of those, 
who have previously been held in slavery ? If there be, let the 
advocates of slavery point it out. If there be no such authority 
all their statutes declaring that the children of slaves shall follow 
the condition of iheir mothers, are unconstitutional and void ; and 
those children are free by force of the law of nature. 

This law of nature, that all men are born free, was recognized 
by this country in the Declaration of Independence. But it was 
no new principle then. Justinian says, " Captivity and servitude 
are both contrary to the law of nature ; for by that law all men are 
born free." But the principle was not new with Justinian; it 
exists in the nature of man, and is as old as man — and the race 
of man generally has acknowledged it. The exceptions have 
been special ; the rule general. 

The constitution of the United States recognizes the principle 
that all men are born free ; for it recognizes the principle that 
natural birth in the country gives citizenship* — which of course 

* Art. 2, Sec. 1, Clause 5 : " No person, except a natural bom citizen, * * * 
shall be eligible to the office of President." ' 



132 THE UNCONSTITUTIONALITY OF SLAVERY. 

implies freedom. And no exception is made to the lule. Of 
course all born in the country since the adoption of the constitution 
of the United States, have been born free, whether there were, or 
were not any legal slaves in the country before that time. 

Even the provisions, in the several State constitutions, that the 
legislatures shall not emancipate slaves, would, if allowed their full 
effect, unrestrained by the constitution of the United States, hold 
in slavery only those who were then slaves ; it would do nothing 
towards enslaving their children, and would give the legislatures 
no authority to enslave them. 

It is clear, therefore, that, on this principle alone, slavery would 
now be extinct in this country, unless there should be an exception 
of a few aged persons. 



THK 



UNCONSTITUTIONALITY 



OF 



SL A YE R Y: 



PAET SECOND. 



BY LYSANDER SPOONER. 



BOSTON: 
PUBLISHED BY BELA MARSH, 



Elntered according to Act of Congress, in the year 1347, by 

LYSANDER SPOONER, 
In tlie Clerk's Office ot tlie District Court of Massachusetts. 



Slereolyped ht 

GEORGE A. CURTiR- 

NEW ENGLAND TYPE AND STEREOTYPE POUNDRT. 



CONTENTS OF PART SECOND. 



PAGE 

CHAPTER XIV. — THE DEFINITION OF LAW, - - 137 
« XV. — OUGHT JUDGES TO RESIGN THEIR 

SEATS? 147 

■« XVI. — "THE SUPREME POWER OF A STATE," 153 

« XVn. — RULES OF INTERPRETATION, - - 155 

First Rule, - - - - - - 157 

Second Rule, - - - - - - 161 

Third Rule, 1G5 

Fourth Rule, 168 

Fifth Rule, 180 

Sixth Rule, 182 

Seventh Rule, 189 

Eighth Rule, 196 

Ninth Rule, 198 

Tenth Rule, 199 

Eleventh Rule, 200 

Twelfth Ruk, 200 

Thirteenth Rtde, 201 

Fourteenth Ruk, -----. 204 

RULE3 CITED FOR SLAVERY, - - '- - 205 

First Rule cittd for Slcvery, - - - - 205 

Second Rule do. do. - - - - 213 

Third Rule So. do. - - - - 217 

Fourth Rule do. do. - - - - 219 

« XVIII. — SERVANTS COUNTED AS UNITS, - - 237 

« XIX. — SLAVE REPRESENTATION, - - - 238 

« XX. — ALIENS COUNTED AS THREE FIFTHS, 242 

« XXL — WHY THE WORDS "FREE PERSONS" 

WERE USED, 247 

*' XXII. — "ALL OTHER PERSONS," - - 257 
** XX X-.- ADDITIONAL ARGUMENTS 01* THE 

WORD "FREE," . . - . 264 
« XXIV. — POWER OF THE GENERAL GOVERN- 
MENT OVER SLAVERY, - - 269 

APPENDIX. 

A. Fugitive Slwes, -------- 279 



UNCONSTITUTIONALITY OF SLAVERY. 

PART SECOND. 



CHAPTER XIV. 

THE DEFINITION OF LAW. 

It has been alleged, by way of objection to the definition of 
law given in chapter first, that under it the law would be uncer- 
tain, and government impracticable. Directly the opposite of both 
these allegations is true. Let us see. 

1. Natural law, so far from being uncertain, when compared 
with statutory and constitutional law, is- the only thing that gives 
any certainly at all to a very large portion of our statutory and 
constitutional law. The reason is this. The words, in which 
statutes and constitutions are written, are susceptible of so many 
different meanings, — meanings widely different from, often di- 
rectly opposite to, each other, in their bearing upon men's rights, 
— that, unless there were some rule of interpretation for determin- 
ing which of these various and opposite meanings are the true 
ones, there could be no certainty at all as to the meaning of the 
statutes and constitutions themselves. Judges could make almost 
anything they should please out of them. Hence the necessity 
of a rule of interpretation. And this rule is, that the language of 
statutes and co7istit7ctions shall be construed, as 7iearly as possible, 
consistently loith natural law. 

The rule assumes, what is true, that natural law is a thing 
certain in itself; also that it is capable of being learned. It 
assumes, furthermore, that it actually is understood by the legisla- 
tors and judges who make and interpret the writ'^en law. Of 
necessity, therefore, it assumes further, that they (the legislators 
and judges) are incompetent to make and interpret the writte7i law, 
unless they previously understand the natural law applicable to the 
12* 



138 THE UNCONSTITUTIONALITY OF SLAVERY. 

same subject. It also assumes that the people must understand 
the natural law, before they can understand the written law. 

It is a principle perfectly familiar to lawyers, and one that must 
be perfectly obvious to every other man that will reflect a moment, 
that, as a general rule, no one can know what the written law is, 
until he knoios ivhat it ought to he; that men are liable to be 
constantly misled by the various and conflicting senses of the 
same words, unless they perceive the true legal sense in which 
the words ought to be taken. And this true legal" sense is the 
sense that is most nearly consistent with natural law of any that 
me words can be made to bear, consistently with the laws of lan- 
guage, and appropriately to the subjects to which they are applied. 

Though the words contain the law, the loords themselves are 
not the lav\'. Were the words themselves the law, each single 
written law would be liable to embrace many different laws, to 
wit, as many difTerent laws as there were different senses, and 
different combinations of senses, in which each and all the words 
were capable of being taken. 

Take, for example, the Constitution of the United States. By 
adopting one or another sense of the single word "/ree," the 
whole instrument is changed. Yet, the word free is capable of 
some ten or twenty different senses. So that, by changing the 
sense of that single word, some ten or twenty different constitu- 
tions could be made out of the same written instrument. But 
there are, we will suppose, a thousand other words in the consti- 
tution, each of which is capable of from two to ten different senses. 
So that, by changing the sense of only a single word at a time, 
several thousands of different constitutions would be made. But 
this is not all. Variations could also be made by changing the 
senses of two or more words at a time, and these variations could 
be run through all the changes and combinations of senses that 
these thousand words are capable of. We see, then, that it is no 
more than a literal truth, that out of that single instrument, as it 
now stands, without altering the location of a single word, might 
be formed, by construction and interpretation, more different con- 
stitutions than figures can well estimate. 

But each written law, in order to be a law, must be taken only 
n\ some one definite and distinct sense ; and that definite and dis- 
tinct sense must be selected from the almost infinite variety of 
senses which its words are capable of. How is this selection to 



THE DEFINITION OF LAW. 139 

be made ? It can be only by the aid of that perception of natural 
law, or natural justice, which men naturally possess. 

Such, then, is the comparative certainty of the natural and the 
written law. Nearly all the certainty there is in the latter, so far 
as it relates to principles, is based upon, and derived from, the 
still greater certainty of the former. In fact, nearly all the uncer- 
tainty of the laws under which we live, — which are a mixture of 
natural and written laws, — arises from the difficulty of construing, 
or, rather, from the facility of misconstruing, the written law. 
While natural law has nearly or quite the same certainty as 
mathematics. On this point. Sir William Jones, one of the most 
learned judges that have ever lived, learned in Asiatic as well as 
European law, says, — and the fact should be kept forever in 
mind, as one of the most important of all truths : — " It is pleasing 
to remark the similarity, or, rather, the identity of those conclu- 
sions ivhich pure, unbiassed reason, in all ages and nations, seldom 
fails to draw, in such juridical inquiries as are not fettered and 
manacled hy positive institutions.''^ In short, the simple fact that 
the written law must be interpreted by the natural, is, of itself, 
a sufficient confession of the superior certainty of the latter. 

The written law, then, even where it can be construed con- 
sistently with the natural, introduces labor and obscurity, instead 
of shutting them out. And this must always be the case, because 
words do not create ideas, but only recall them ; and the same word 
may recall many different ideas. For this reason, nearly all 
abstract principles can be seen by the single mind more clearly 
than they can be expressed by words to another. This is owang to 
the imperfection of language, and the different senses, meanings, 
and shades of meaning, which different individuals attach to the 
same words, in the same circumstances.! 

Where the written law cannot be construed consistently with 
the natural, there is no reason why 't should ever be enacted at 
all. It may, indeed, be sufficiently plain and certain to be easily 
understood ; but its certainty and plainness are but a poor compen- 

* Jones on Bailments, 133. 

t Kent, describing the difficulty of construing the written law, says : — 
" Such is the imperfection of language, and the want of technical skill in the 
makers of the law, that statutes often give occasion to the most perplexing and 
distressing doubts and discussions, arising from the ambiguity that attends them. 
It requires great experience, as well as the command of a perspicuous diction, to 
frame a law in such clear and precise terms, as to secure it from ambiguous 
expressions, and from all doubts and criticisms upon its meaning." — Kent, 460. 



140 THE TTNCONSTITUTIONALITY OF SLAVERY. 

sation for its injustice. Doubtless a law forbidding men to drink 
water, on pain of death, might be made so intelligible as to cut off 
all discussion as to its meaning; but would the intelligibleness of 
such a law be any equivalent for the right to drink water ? The 
principle is the same in regard to all unjust laws. Few persons 
could reasonably feel compensated for the arbitrary destruction of 
their rights, by having the order for their destruction made known 
beforehand, in terms so distinct and unequivocal as to admit of 
neither mistake nor evasion. Yet this is all the compensation 
that such laws offer. 

Whether, therefore, written laws correspond with, or differ from, 
the natural, they are to be condemned. In the first case, they are 
useless repetitions, introducing labor and obscurity. In the latter 
case, they are positive violations of men's rights. 

There would be substantially the same reason in enacting 
mathematics by statute, that there is in enacting natural law. 
Whenever the natural law is sufficiently certain to all men's 
minds to justify its being enacted, it is sufficiently certain to need 
no enactment. On the other hand, until it be thus certain, there 
is danger of doing injustice by enacting it ; it should, therefore, be 
left open to be discussed by anybody who may be disposed to 
question it, and to be judged of by the proper tribunal, the judici- 
ary.^ 

It is not necessary that legislators should enact natural law in 
order that it may be known to the people, because that would be 
presuming that the legislators already understand it better than the 
people, — a fact of which I am not aware that they have ever here- 
tofore given any very satisfactory evidence.* The same sources of 
knowledge on the subject, are open to the people, that are open to 
the legislators, and the people must be presumed to know it as 
well as they.t 

* This condemnation of written laws must, of course, be understood as applying 
only to cases where principles and rights are involved, and not as condemning any 
governmental arrangements, or instrumentalities, that are consistent with natural 
right, and which must be agreed upon for the purpose of carrying natural law into 
effect. These things may be varied, as expediency may dictate, so only that they 
be allowed to infringe no principle of justice. And they must, of course, be writ- 
ten, because they do not exist as fixed principles, or laws in nature. 

+ The objections made to natural law, on the ground of obscurity, are wholly 
unfounded. It is true, it must be learned, like any other science, but it is equally 
true, that it is very easily learned. Although as illimitable in its applications as 
the infinite relations of men to each other, it is, nevertheless, made up of simple 
elementary principles, of the truth and justice of which every ordinary mind has 



THE DEFINITION OF LAW. 141 

2. But it is said further, that government is not practicable under 
this theory of natural law. If by this is meant only that govern- 
ment cannot have the same arbitrary and undisputed supremacy 
over men's rights, as under other systems — the same absolute 

an almost intuitive perception. It is the science of justice, — and almost all men 
have the same perceptions of what constitutes justice, or of what justice requires, 
when they understand alike the facts from which their inferences are to he drawn. 
Men living in contact with each other, and having intercourse together, cannot 
avoid learning natural law, to a very great extent, even if they would. The deal- 
ings of men with men, their separate possessions, and their individual wants, are 
continually forcing upon their minds the questions, — Is this act just? or is it un- 
just ? Is this thing mine ? or is it his ? And these are questions of natural law ; 
questions, which, in regard to the great mass of cases, are answered alike by the 
human mind everywhere. 

Children learn many principles of natural law at a veiy early age. For example ; 
they learn that when one child has picked up an apple or a flower, it is his, 
and that his associates must not take it from him against his will. They also 
learn that if he voluntarily exchange his apple or flower with a playiiiale, for some 
other article of desire, he has thereby surrendered his right to it, and must not 
reclaim it. These are fundamental principles of natural law, which govern most 
of the greatest interests of individuals and society ; yet, children learn them earlier 
than they learn that three and three are six, or five and five, ten. Talk of enacting 
natural law by statute, that it may be known ! It would hardly be e.xtravagant to 
say, that, in nine cases in ten, men learn it before they have learned the language 
by which we describe it. Nevertheless, numerous treatises are written on it, as on 
other sciences. The decisions of courts, containing their opinions upon the almost 
endless variety of cases that have come before them, are reported ; and these 
reports are condensed, codified, and digested, so as to give, in a small compass, the 
facts, and the opinions of the courts as to the law resulting from them. And these 
treatises, codes, and digests are open to be read of all men. And a man has the 
same excuse for being ignorant of arithmetic, or any other science, that he has for 
being ignorant of natural law. He can learn it as well, if he will, without its 
being enacted, as he could if it were. 

If our governments would but themselves adhere to natural law, there would be 
little occasion to complain of the ignorance of the people in regard to it. The pop- 
ular ignorance of law is attributable mainly to the innovations that have been 
made upon natural law by legislation ; whereby our system has become an incon- 
gruous mixture of natural and statute law, with no uniform principle pervading it. 
To learn such a system, — if system it can be called, and if learned it can be,— is a 
matter of very similar diflSculty to what it would be to learn a system of mathemat- 
ics, which should consist of the mathematics of nature, interspersed with such 
other mathematics as might be created by legislation, in violation of all the natural 
principles of pumbers and quantities. 

But whether the difficulties of learning natural law be greater or less than here 
represented, they exist in the nature of things, and cannot be removed. Legislation, 
instead of removing, only increases them. This it does by innovating upon natural 
truths and principles, and introducing jargon and contradiction, in the place of 
order, analogy, consistency, and uniformity. 

Further than this ; legislation does not even profess to remove the obscurity of 
natural law. That is no part of its object. It only professes to substitute some* 



142 THE UNCONSTITUTIONALITY OF SLAVERY. 

authority to do injustice, or to maintain justice, at its pleasure — 
the allegation is of course true ; and it is precisely that, that con- 
stitutes the merits of the system. But if anything more than 
that is meant, it is untrue. The theory presents no obstacle to 
the use of all J7ist means for the miaintenance of justice; and this 
is all the power that government ought ever to have. It is all the 
power that it can have, consistently with the rights of those on 
whom it is to operate. To say that such a government is not 
practicable, is equivalent to saying that no governments are prac- 
ticable but arbitrary ones ; none but those that are licensed to do 
injustice, as well as to maintain justice. If these latter govern- 
ments only are practicable, it is time that all men knew it, in order 
that those who are to be made victims may stand on their defence, 
instead of being cheated into submission by the falsehood that 
government is their protector, and is licensed to do, and intends to 
do, nothing but justice to any. 

If we say it is impracticable to limit the constitutional power of 
government to the maintenance of natural law, we must, to be 
consistent, have done with all attempts to limit government at all 
by written constitutions ; for it is obviously as easy, by written 
constitutions, to limit the powers of government to the maintenance 
of natural law, as to give them any other limit whatever. And if 
they were thus limited expressly, it would then, for the reasons 
before given, be as easy, and even altogether more easy, for the 
judiciary to determine what legislation was constitutional, and what 
not, than it is under a constitution that should attempt to define the 
powers of government arbitrarily. 

thing arbitrary in the place of natural law. Legislators generally have the sense 
to see that legislation will not make natural law any clearer than it is. 

Neither is it the object of legislation to establish the authority of natural law. 
Legislators have the sense to see that they can add nothing to the authority of 
natural law, and that it will stand on its own authority, unless they overturn it. 

The whole object of legislation, excepting that legislation which merely makes 
regulations, and provides instrumentalities for carrying other laws into etfect, is to 
overturn natural law, and substitute for it the arbitrary will af power. In olher 
•words, the whole object of it is to destroy men's rights. At least, such is its only 
effect ; and its design must be inferred from its effect. Taking all the statutes in 
the country, there ])rohably is not one in a hrmdred, — except the auxiliary ones just 
mentioned, — that does not violate natural law ; that does not invade some right or 
other. 

Yet, the advocates of arbitrary le.gislation are continually practising the fraud ol 
pretending, that unless the legislature make the laws, the laws will not be known. 
The whole object of the fraud is to secure to the government the authority of 
making laws that never ought to be known. 



THE DEFINITION OF LAW. 143 

On what ground it can seriously be said that such a government 
is impracticable, it is difficult to conceive. Protecting the rights 
of all, it would naturally secure the cordial support of all, instead 
of a part only. The expense of maintaining it would be far less 
than that o-f maintaining a different one. And it would certainly 
be much more practicable to live under it, than under any other. 
Indeed, this is the onhj government which it is practicable to estab- 
lish by the consent of all the governed ; for an unjust government 
must have victims, and the victims cannot be supposed to give their 
consent. All governments, therefore, that profess to be founded 
on the consent of the governed, and yet have authority to violate 
natural laws, are necessarily frauds. It is not a supposable case, 
that all, or even any very large part, of the governed, can have 
agreed to them. Justice is evidently the only principle that every- 
body can be presumed to agree to, in the formation of government. 

It is true that those appointed to administer a government 
founded on natural law, might, through ignorance or corruption, 
depart from the true theory of the government in particular cases, 
as they do under any other system ; and these departures from the 
system would be departures from justice. But departures from 
justice would occur only through the errors of the men ; such 
errors as systems cannot wholly prevent ; they would never, as 
under other systems, be authorized by the constitution. And even 
errors arising from ignorance and corruption would be much less 
frequent than under other systems, because the powers of govern- 
ment would be much more definite and intelligible ; they could 
not, as under other systems, be stretched and strained by construc- 
tion, so as to afford a pretext for anything and everything that 
corruption might desire to accomplish. 

It is probable that, on an average, three fourths, and not un- 
likely nine tenths, of all the law questions that are decided in the 
progress of every trial in our courts, are decided on natural prin- 
ciples ; such questions, for instance, as those of evidence, crime, 
the obligation of contracts, the burden of proof, the rights of 
property, &c., fcc."^ If government be practicable, as we thus see 
it to be, where three fourths or nine tenths of the law administered 

* Kent says, and truly, that " A great proportion of the rules and maxims, 
which constitute the immense code of the common law. grew into use by gradual 
adoption, and received the sanction of the courts of justice, without any legislative 
act or interference. It was the application of the dictates of natural justice and 
cultivated reason to particular cases." 1 Kent, 470. 



144 THE UNCONSTITUTIONALITY OF SLAVERY. 

is natural, it would be equally practicable where the whole was 
so. 

So far from government being impracticable on principles of 
natural law, it is wholly impracticable to have a government of 
law, applicable to all cases, unless the great body of the law ad- 
ministered be natural ; because it is impossible for legislation to 
anticipate but a small portion of the cases that must arise in regard 
to men's rights, so as to enact a law for them. In all the cases 
which the legislature cannot anticipate and provide for, natural law 
must prevail, or there can be no law for them, and, consequently, 
— so far as those cases are concerned — no government. 

Whether, therefore, we regard the certainty of the law, or the 
practicability of a government applicable to all cases, the preference 
is incomparably in favor of natural law. 

But suppose it were not so. Suppose, for the sake of the argu- 
ment, that the meaning of the arbitrary commands of power were, 
in the majority of cases, more easily ascertained than the principles 
of natural justice ; is that any proof that the former are law, and 
the latter not ? Does the comparative intelligibility of the two 
determine which is to be adopted as the true definition of law ? It 
is very often easier to understand a lie than to ascertain a truth j 
but is that any proof that falsehood is synonymous with fact ? or 
is it any reason why falsehood should be held to be fact? As 
much reason would there be in saying this, as there is in saying 
that the will of the supreme power of the state is law, or should 
be held to be law, rather than natural justice, because it is easier 
to understand the former than to ascertain the latter. • 

Or suppose, further, that government were impracticahle, under 
such a definition of law as makes law synonymous with natural 
justice ; would that be any argument against the definition ? or only 
against government ? 

The objection to the practicability of government under such a 
definition of law, assumes, 1st, that government must be sustained, 
whether it administer justice or injustice; and, 2d, that its com- 
mands must be called law, whether they really are law or not. 
Whereas, if justice be not law, it may certainly be questioned 
whether government ought to be sustained. And to this question 
all reasonable men must answer, that we receive such an abundance 
of injustice from private persons, as to make it inexpedient to 
maintain a government for the sole purpose of increasing the sup- 
ply. But even if unjust government must be sustained, the ques- 



THE DEFINITION OF LAW. 145 

tion will still remain, whether its commands ought to be called 
law ? If they are not law, they should be called by their right 
name, whatever it may be. 

In short, the definition of law involves a question of truth or 
falsehood. Natural justice either is law, or it is not. If it be law, 
it is always law, and nothing inconsistent with it can ever be made 
law. If it be not law, then we have no law except what is pre- 
scribed by the reigning power of the state ; and all idea of justice 
being any part of our system of law, any further than it may be 
specially prescribed, ought to be abandoned ; and government 
ought to acknowledge that its authority rests solely on its power 
to compel submission, and that there is not necessarily any moral 
obligation of obedience to its mandates. 

If natural justice be 7iot law, then all the decisions that are 
made by our courts on natural principles, without being prescribed 
by statute or constitution, are unauthorized, and not law. And 
the decisions of this kind, as has already been supposed, comprise 
probably three fourths, or more likely nine tenths, of all the deci- 
sions given by our courts as law."* 

If natural justice be law, then all statutes and constitutions 
inconsistent with it are no law, and courts are bound to say so. 
Courts must adopt some definition of law, and adhere to it. They 
cannot make it mean the two opposite principles of justice and 
injustice at once. White cannot be made white and black at the 
same time, by the assertions of all the courts on the globe. Neither 
can law be made two opposite things at once. It must be either 
one thing or the other. 

No one doubts that there is such a principle as natural law ; and 
natural law is natural justice. If natural justice be law, natural 
injustice cannot be made law, either by " the supreme power of the 

* That is, these decisions are unauthorized, on the supposition that justice is 
nnt necessarily law, unless the general requirement, made upon courts by sonne 
of our constitutions, that they " administer right and justice," or some other re- 
quirement contained in them equivalent to that, be considered as arbitrarily pre- 
scribing these principles as law, and thus authorizing the decisions. But if these 
requirements, instead of being regarded, as they doubtless ought to be, as an ac- 
knowledgment that " right and justice " are law of themselves, be considered only 
as arbitrarily prescribing them as law, it is at least an admission that the simple 
words "right and justice " express, with legal accuracy, an infinite variety of fixed, 
definite, and certain principles, that are properly applicable, as Jaw, to the relations 
of man with man. But wherever a constitution makes no such requirement, the 
decisions are illegal, as being made without authority, unless justice itself be law 

13 



146 THE XJNCONSTITtrxiONALITY OF SLAVERY. 

State," or by any other power ; and it is a fraud to call it by that 
name. 

" The supreme powers of states," whether composed of majori- 
ties or minorities, have alike assumed to dignify their unjust com- 
mands with the name of law, simply for the purpose of cheating 
the ignorant into submission, by impressing them with the idea 
that obedience was a duty. 

The received definition of law, viz., that it is " a rule of civil 
conduct prescribed by the supreme power of a state," had its origin 
in days of ignorance and despotism, when government was founded 
in force, without any acknowledgment of the natural rights of men. 
Yet even in those days the principle of justice competed, as now, 
with the principle of power, in giving the definition of law ; for 
justice was conceded to be the law in all, or very nearly all, the 
cases where the will of the supreme power had not been explicitly 
made known ; and those cases comprised, as now, a very large 
portion of all the cases adjudicated. 

What a shame and reproach, nay, what an unparalleled crime 
is it, that at this day, and in this country, where men's natural 
rights are universally acknowledged, and universally acknowledged 
to be inalienable, and where government is acknowledged to have 
no just powers except what it derives from the consent of the gov- 
erned, (who can never be supposed to consent to any im'asion of 
their rights, and who can be supposed to establish g-ovemment only 
for their protection,) a definition of law should be adhered to, that 
denies all these self-evident and glorious truths, blots out all men's 
natural rights, founds government on force, buries all present 
knowledge under the ignorance and tyranny of the past, and 
commits the liberties of mankind to the custody of unrestrained 
power ! 

The enactment and enforcement of unjust laws are the greatest 
crimes that are committed by man against man. The crimes of 
single individuals invade the rights of single individuals. Unjust 
laws invade the rights of large bodies of men, often of a majority 
of the whole community ; and generally of that portion of com- 
munity who, from ignorance and poverty, are least able to bear the 
wrong, and at the same time least capable of resistance.* 

* We add the following authorities to those given in the note to chapter first, on 
the true nature and definition of law : — Cicero says, " There is a true law, a right 
reason, conformable to nature, universal, unchangeable, eternal. * * * * This 
law cannot be contradicted by any other law, and is not liable either to derogatioD 



OUGHT JUDGES TO RESIGN THEIR SEATS ? 147 

CHAPTER XV. 

OUGHT JUDGES TO RESIGN THEIR SEATS? 

It being admitted that a judge can rightfully administer injustice 
as law, in no case, and on no pretence whatever ; that he has no 
right to assume an oath to do so ; and that all oaths of that kind 

or abrogation. Neither the senate nor the people can give us any dispensation for 
Dot oheyingthis universal law of justice. * * * * It is not one thing at Rome, 
and another at Athens ; one thing to-day, and another to-morrow ; but in all times 
and nations, this universal law must forever reign, eternal and imperishable. * * 
* * He who obeys it not, flies from himself, and does violence to the very nature 
of man." — Cicero^s Republic, Barham's Translation, B. 3, p. 270. 

"This justice is the very foundation of lawful government in political constitu 
tions." — S'ame, B. 3, p. 272. 

" To secure to the citizens the benefits of an honest and happy life, is the grand 
object of all political associations." — Same, B. 4, p. 283. 

" There is no employment so essentially royal as the exposition of equity, 
which comprises the true meaning of all laws." — Same, B. 5, p. 290. 

" According to the Greeks, the name of law implies an equitable distribution of 
goods ; according to the Romans, an equitable discrimination between good and 
evil. The true definition of law should, however, include both these character- 
istics. And this being granted as an almost self-evident proposition, the origin 
of justice is to be sought in the divine law of eternal and immutable morality." — 
Cicero''s Treatise on the Lta^cs, Barham's Translation, B. I, p. 37. 

" Of all the questions which our philosophers argue, there is none which it is more 
important thoroughly to undersland than this, — that man is born for justice, and 
that law and equity are not a mere establishment of opinion, but an institution of 
nature." — Same, B. I, p. 45. 

" Nature hath not merely given us reason, but right reason, and, consequently, 
that law, which is nothing else than right reason, enjoining what is good, and for- 
bidding what is evil. 

" Now, if nature hath given us law, she hath also given us justice ; for, as she 
has bestowed reason on all, she has equally bestowed the sense of justice on all." 
-Same, B. \,p. 43. 

" Nature herself is the foundation of justice." — Same, B. \,p. 49. 

" It is an absurd extravagance, in some philosophers, to assert that all things are 
necessarily just, which are established by the civil laws and the institutions of the 
people. Are, then, the laws of tyrants just, simply because they are laws ? If the 
thirty tyrants of .iVthens imposed certain laws on the Athenians, and if these Atheni- 
ans were delighted with these tyrannical laws, are we, therefore, bound to consider 
these laws as just? For my own part, I do not think such laws deserve any 
greater estimation than that passed during our own interregnum, which ordained 
that the dictator should be empowered to put to death with impunity, whatever 
citizens he pleased, without hearing them in their own defence. 

"There can be but one essential justice which cements society, and one law 
\vhich establishes this justice. This law is right reason, which is the true rule of 
all commandments imd prohiliitions. Whoever neglects this law, whether written 
or unwritten, is necessarily unjust and wicked. 



148 THE trNCONSTITUTIONALITY OF SLAVERY. 

are morally void ; the question arises, whether a judge, who has 
actually sworn to support an unjust constitution, be morally bound 

" But if justice consist in submission to written laws and customs, and if, as the 
Epicureans persist in affirming, everything must be measured by utility alone, he 
who wishes to find an occasion of breaking such laws and customs, will be sure to 
discover it. So that real justice remains powerless if not supported by nature, 
and this pretended justice is overturned by that very utility which they call its 
foundation." — Same, B. I, p. 55-6. 

"If nature does not ratify law, all virtues lose their sway." — Same, B. I, p. 56. 

" If the will of the people, the decrees of the senate, the adjudications of magis- 
trates, were sufficient to establish justice, the only question would be how to gain 
sufl'rages, and to win over the votes of the majority, in order that corruptisn and 
spoliation, and the falsification of wills, should become lawful. But if the opinions 
and suffrages of foolish men had sufficient weight to outbalance the nature of 
things, might they not determine among them, that what is essentially bad and 
pernicious should henceforth pass for good and beneficial ? Or why should not a 
law, able to enforce injustice, take the place of equity? Would not this same law 
be able to change evil into good, and good into evil? 

"As far as we are concerned, we have no other rule capable of distinguishing 
between a good or a bad law, than our natural conscience and reason. These, how- 
ever, enable us to separate justice from injustice, and to discriminate between the 
honest and the scandalous. For common sense has impressed in our minds the 
first principles of things, and has given us a general acquaintance with them, by 
which we connect with virtue every honorable and excellent quality, and with vice 
all that is abominable and disgraceful. 

" Now we must entirely take leave of our senses, ere we can suppose that law 
and justice have no foundation in nature, and rely merely on the transient opin- 
ions of men." — Same, B. 1, p. 56-7. 

" Whatever is just is always the true law ; nor can this true law either be origi- 
nated or abrogated by any written enactments." — Same, B. 2, p. 83. 

" As the divine mind, or reason, is the supreme law, so it exists in the mind of 
the sage, so far as it can be perfected in man. With respect to civil laws, which 
differ in all ages and nations, the name of law belongs to them not so much by 
right as by the favor of the people. For every law which deserves the name of 
a law ought to be morally good and laudable, as we might demonstrate by the 
following arguments. It is clear, that laws were originally made for the security of 
the people, for the preservation of cities, for the peace and benefit of society. 
Doubtless, the first legislators persuaded the people that they would write and pub- 
lish such laws only as should conduce to the general morality and happiness, if 
they would receivfe and obey them. Such were the regulations, which being set- 
tled and sanctioned, they justly entitled laxcs. From which, we may reasonably 
conclude, that those who made unjustifiable and pernicious enactments for the peo- 
ple, counteracted their own promises and professions, and established anything 
rather than laws, properly so called, since it is evident that the very signification 
of the word law comprehends the essence and energy of justice and equity." — 
Same, B. 2, p. 83-4. 

" Marcus. If then, in the majority of nations, many pernicious and mischievous 
enactments are made, as far removed from the law of justice we have defined as 
the mutual engagements of robbers, are we bound to call them laws? For as we 
cannot call the recipes of ignorant empirics, who give poisons instead of medicines, 
the prescriptions of a physician, we cannot call that the true law of the people, 
whatever be its name, if it enjoins what is injurious, let the people receive it as 
they will. For law is the just distinction between right and wrong, conform- 



OUGHT JUDGES TO RESIGN THEIR SEATS ? 149 

to resign his seat ? or whether he may rightfully retain his office, 
administering justice, instead of injustice, regardless of his oath ? 

able to natuie, the original and principal regulator of all things, by which the laws 
of men should be measured, whether they punish the guilty, or protect the inno- 
cent. 

" Quintus. I quite agree with )'ou, and think that no law but that of justice 
should either be proclaimed as a law, or enforced as a law. 

"Marcus. Then you regard as nuUable and voidable, the laws of Titius and 
Apuleius, because they are unjust. 

" Quinlus. You may say the same of the laws of Livius. 

" Marcus. You are right ; and so much the more, since a single vote of the sen- 
ate would be sufficient to abrogate them in an instant. But that law of justice 
which I have explained can never be rendered obsolete or inefficacious. 

" Quintus. And, therefore, you require those laws of justice the more ardently, 
because they would be durable and permanent, and would not require those per- 
petual alterations which all injudicious enactments demand." — Same, B. 2, 
p. 85-6. 

"Long before positive laws were instituted, the moral relations of Justice were 
absolute and universal." — Montesquieu. 

"All the tranquillity, the happiness, and security of the human race, rests on jus- 
lice ; on the obligation of paying a regard to the rights of others." — Vatlel, B. 2, 
chap. 12, sec. 163. 

"Justice is the basis of all society." — Vattel, B. 1, chap. 5, sec. 63. 

Bacon says, "There are in nature certain fountains of justice, whence all civil 
laws are derived but as streams." — BacoiVs Tract on Universal Justice. 

" Let no man weakly conceive that just laws, and true policy, have any antipathy, 
for they are like the spirits and sinews, that one moves with the other." — Bacon's 
Essay on Judicature. 

"Justice is the end of government. It is the end of civil society" — Federalist, 
No. 51. 

About half our state constitutions specially require of our courts that they admin- 
ister "right and justice" to every man. 

The national constitution enumerates among its objects, the establishment of 
"justice," and the security of " hberty." 

Judge Story says, " To establish justice must forever be one of the greatest ends 
of every wise government ; and even in arbitrary governments it must, to a great 
extent, be practised, at least in respect to private persons, as the only security 
against rebellion, private vengeance, and popular cruelty. But in a free govern- 
ment, it lies at the very basis of all its institutions. Without justice being freely, 
fully, and impartially administered, neither our persons, nor our rights, nor our 
property, can he protect-ed." — 1 Story's Com. on Const., 463. 

" It appears in our books, that, in many cases, the common law will control acts 
of parliament, and sometimes adjudge them to be utterly void ; for when an act of 
parliament is against common right or reason, the common law will control it, and 
adjudge such act to be void." — Coke, in Bonham's case; 4 Coke's Hep., pari 3, 
p. 118. 

Kent also, although he holds that, in England, " the will of the legislature is 
the supreme law of the land, and demands perfect obedience," yet says: "But 
while we admit this conclusion of the English law, we cannot but admire the intre- 
pidity and powerful sense of justice which led Lord Coke, when Chief Justice of 
the King's beiwh, to declare, as he did in Doctor Bonham's case, that the common 
Jaw doth control acts of parliament, and adjudges them void when against common 
right and reason. The same sense of justice and freedom of opinion led Lord 

13* 



i50 THE UNCONSTITUTIONALITY OF SLAVERY. 

The prevalent idea is, that he ought to resign his seat ; and 
high authorities may be cited for this opinion. Nevertheless, the 
opinion is probably erroneous ; for it would seem that, however 
wrong it may be to take the oath, yet the oath, when taken, being 
morady void to all intents and purposes, can no more bind the 
taker to resign his office, than to fulfil the oath itself. 

The case appears to be this : The office is simply power, put into 
a man's hands, on the condition, based upon his oath, that he will 
use that power to the destruclioii or injury of some person's rights. 
This condition, it is agreed, is void. He holds the power, then, 
by the same right that he would have done if it had been put into 
his hands without the condition. Now, seeing that he cannot 
fulfill, and is under no obligation to fulfill, this void condition, the 
question is, whether he is bound to resign the power, in order that 
it may be given to some one who will fulfill the condition ? or 
whether he is bound to hold the power, not only for the purpose 
of using it himself in defence of justice, but also for the purpose 
of withholding it from the hands of those W'ho, if he surrender it 
to them, will use it unjustly ? Is it not clear that he is bound to 
retain it for both of these reasons ? 

Suppose A put a sword into the hands of B, on the condition 
of B's taking an oath that with it he will murder C. Now, how- 
ever immoral the taking of this oath may be, yet, when taken, the 
oath and the condition are utterly void. They are incapable of 
raising the least moral obligation, of any kind whatever, on the 
part of B towards A. B then holds the sword on the same prin- 
ciple, and by the same right, that he would have done if it had 

Chief Justice Hobart, in Day vs. Savag-e, to insist that an act of parliament, 
made ag-ainst natural equity, as to make a man judge in his own case, was void ; 
and induced Lord Chief Justice Holt to say, in the case of the Citif of London vs. 
Wood, that the observation of Lord Coke was not extravagant, but was a very 
reasonable and true saying." — 1 Kent, 448. 

"A treaty made from an unjust and dishonest intention is absolutely null, no- 
body having- a right to engage to do things contrary to the law of nature." — Vattcl, 
B. 2, chap. 12, sec. 161. 

That definition which makes law to be "a rule of civil conduct, prescribed by the 
supreme power of a state, commanding what its subjects are to do, and prohibit- 
ing what they are to forbear," is manifestly a false definition, inasmuch as it does 
not include the law of nations. The law of nations has never been " prescribed " 
by any " supreme power," that regards the nations as its " subjects," and rules over 
them as other governments rule over individuals. Nations acknowledge no such 
supreme power. The law of nations is, in reality, nothing else than the law of 
nature, applicable to nations. Yet it is a law which all civilized nations acknowl- 
edge, and IS all that preserves the peace of nations ; and no definition of law that 
excludes so important a portion of the law of the world, can reasonably be for a 
moment regarded as true. 



OTJGHT JUDGES TO RESIGN THEIR SEATS? 151 

been put into his hands without any oath or condition whatever. 
Now the question is, whether B, on refusing to fulfil the condition, 
is bound to retain the sword, and use it, if necessary, in defence 
of C ? or whether he is bound to return it to A, in order that A 
may give it to some one who will use it for the murder of C ? 
The case seems to be clear. If he were to give up the sword, 
under these circumstances, knowing the use that was intended to 
be made of it, and it should then be used, by some other pei'son, 
for the murder of C, he would be, on both moral and legal prin- 
ciples, as much accessary to the murder of C, as though he had 
furnished the sword for that specific purpose, under any other cir- 
cumstances whatever. 

Suppose A and B come to C with money, which they have 
stolen from D., and intnsst it to him, on condition of his taking an 
oath to reslore it to them when they shall call for it. Of course, 
C ought not to take such an oath in order to get possession of the 
money ; yet, if he have taken the oath, and received th-e money, 
Siis duty, on both moral and legal principles, is then the same as 
though he had received it without any oath or condition ; because 
the oath and condition are both morally and legally void. And if 
he were to restore the money to A and B, instead of restoring it 
to D, the true owner, he would make himself their accomplice in 
the theft — a receiver of stolen goods. It is his duty to restore it 
to D. 

Suppose A and B come to C, with a captive, D, whom they 
'have seized with the intention of reducing him to slavery ; and 
should leave him in the custody of C, on condition of Cs taking 
an oath that he will restore him to them again. Now, although it 
is wrong for C to take such an oath for the purpose of getting the 
custody of D, even with a view to set him free, yet, if he have 
taken it, it is void, and his duty then is, not to give D 'up to his 
captors, hut to set him at liberty — else he will be an accomplice 
in the crime of enslaving him. 

The principle, in all these cases, appears to be precisely similar 
to that in the case of a judge, who has sworn to support an unjust 
constitution. He is intrusted with certain power over the rights 
of men, on condition of his taking an oath that he will use the 
power for the violation of those rights. It would seem that there 
can hardly be a question, on either moral or legal principles, that 
ihis power, which he has received on the condition that he shall 
use it for the destruction of men's rights, he is bound to retain and 
use for their defence. 



52 THE UNCONSTITUTIONALITY OF SLAVERY. 

If there be any difference of principle in these several cases, 1 
should like much to see it pointed out. There probably is none. 
And if there be none, the principle that would induce a judge to 
resign his power ; is only a specimen of the honor that is said to 
prevail among thieves ; it is no part of the morality that should 
govern men claiming to be just towards all mankind. It is indeed 
but a poor specimen even of the honor of thieves, for that honor, 
I think, only forbids the exposure of one's accomplices, and the 
seizure, for one's own use, of more than his agreed share of the 
spoils ; it hardly forbids the restoration of stolen property to its 
rightful owners. 

As long as the dogma is sustained that a judge is morally bound 
either to fulfil his oath to support an unjust constitution, or to sur- 
render the power that has been entrusted to him for that purpose, 
so long those, who wish to establish such constitutions, will be 
encouraged to do so ; because they will know that they can always 
find creatures enough, who will accept the office for its honors and 
emoluments, and will then execute it, if they must, rather than 
surrender them. But let the principle be established that such 
oaths are void, and that the power conferred is therefore held on 
the same grounds as though the oath had not been taken at al), 
and one security, at least, for the execution of unjust constitutions 
is taken away, and the inducement to establish them is consequently 
weakened. 

Judges and other public officers habitually appeal to the pre- 
tended obligation of their oaths, when about to perform some act 
of iniquity, for which they can find no other apology, and for 
which they feel obliged to offer some apology. Hence the impor- 
tance of the doctrine here maintained, if it be true. 

Perhaps it will be said that a judge has no rig-ht to set up his 
own notions of the validity of a statute, or constitution, against 
the opinions of those who enact or establish it ; that he is bound 
to suppose that they consider the statute or constitution entirely 
just, whatever may be his own opinion of it; and that he is there- 
fore bound to yield his opinion to theirs, or to resign his seat. 
But this is only saying that, though appointed judge, he has no 
right to be judge. It is the prerogative of a judge to decide every- 
thing that is involved in the question of law, or no law. His own 
mind alone is the arbiter. To say that it is not, is to say that he 
is not judge. He may err, like other men. Those who appoint 
him, take the risk of his errors. He is bound only by his own 
convictions. 



*' THE SUPREME POWER OF A STATE." 153 

But there is no reason in presuming that legislators, or constitu- 
tion makers, when they violate natural law, do it in the belief that 
they are conforming to it. Everybody is presumed to know the 
law, especially natural law. And legislators must be presumed 
to know it, as well as other men ; and if they violate it, (which 
question the judge must decide,) they, like other men, must be 
presumed to have done it intentionally. 



CHAPTER XVI. 

"THE SUPREME POWER OF A STATE." 

If any additional argument were needed to enforce the author- 
ity of natural law, it would be found in the nature of the only 
opposing authority, to wit, the authority of " the supreme power 
of the state," as it is called. 

In most " states," " the supreme power " is obtained by force, 
and rests upon force ; and its mandates do not necessarily have any 
other authority than what force can give them. 

But in this country, " the supreme power " is acknowledged, in 
theory, to rest with the people." Our constitutions purport to be 
established by " the people," and, in theory, " all the people " co7i- 
sent to such government as the constitutions authorize. But this 
consent of " the people " exists only in theory. It has no exis- 
tence in fact. Government is in reality established by the {ew; 
and these few asmme the consent of all the rest, without any such 
consent being actually given. Let us see if such be not the fact. 

Only the male adults are allowed to vote either in the choice of 
delegates to form constitutions, or in the choice of legislators 
under the constitutions. These voters comprise not more than one 
fifth of the population. A bare majority of these voters, — that 
is, a little more than one tenth of the whole people, — choose the 
delegates and representatives. And then a bare majority of these 
delegates and representatives, (which majority were chosen by, 
and, consequently, represent but little more than one twentieth of 
the whole people,) adopt the constitution, and enact the statutes. 
Thus the actual makers of constitutions and statutes cannot be said 
to be the representatives of but little .nore than one twentieth of 
the people whose rights are affected by their action. 

In fact, not one twentieth, but only a little more than one forti- 



..54 THE UNCONSTITUTIONALITY OF SLAVERY. 

eth^ of the people, are necessarily represented in our statutory legis- 
lation, state and national ; for, in the national legislature, and in 
ircarly all the state legislatures, a bare majority of the legislative 
bodies constitute a quorum, and a bare majority of that quorum 
are sufficient to enact the laws. The result, then, is substantially 
this. Not more than one fifth of the people vote. A bare majority 
of that fifth, (being about one tenth of the whole,) choose the 
legislators. A bare majority of the legislators, (representing but 
about one twentieth of the people,) constitute a quorum. A 
bare majoi'ity of the quorum, (representing but about one fortieth 
of the people.) are sufficient to make the laws. 

Finally. Even the will of this one fortieth of the people cannot 
be said to be represented in the general legislation, because the 
representative is necessarily chosen for his opinions on one, or at 
most a few, important topics, when, in fact, he legislates on an 
hundred, or a thousand others, in regard to many, perhaps most, 
of which, he differs in opinion from those who actually voted for 
him. He can, therefore, with certaintjr, be said to represent 
nobody but himself. 

Yet the statutory and constitutional law, that is manufactured in 
this ridiculous and fraudulent manner, is claimed to be the will of 
"the supreme power of the state;" and even though it purport to 
authorize the invasion, or even the destruction, of the natural 
rights of large bodies of the people, — men, women, and children, 
— it is, nevertheless, held to have been established by the consent 
of the whole people, and to be of higher authority than the princi- 
ples of justice and natural law. And our judges, with a sanc- 
timony as disgusting as it is hypocritical, continually offer these 
statutes and constitutions as their warrant for such violations of 
men's rights, as, if perpetrated by them in their private capacities, 
would bring upon them the doom which they themselves pro- 
nounce upon felons.* 



* The objection stated in the text, to our present system of legislation, will not 
lie obviated in principle, by assuming that the male adults are natural guardians of 
women and children, as they undoubtedly are of childreu, and perhaps, also, in 
some sense, of women. But if they are their natural guardians, they are their 
guardians only for the purpose of protecting their rights ; not for the purpose of 
taking them away. Nevertheless, suppose, for the s-ake of the argument, that the 
women aivl children are really and rightfully represented through the male adults, 
the objection will still remain that the legislators are chosen by a bare majority of 
the voters, (representing a bare majority of the people ;) and then, a bare majority 
of the legislators chosen constitute a quorum ; and a bare majority of this quorum 



RULES OF INTERPRETATION. 155 



CHAPTER XVII. 

RULES OF INTERPRETATION.* 

The three preceding chapters, as also chapter first, although their 
principles are claimed to be of paramount authority, as law, to all 
statutes and constitutions inconsistent with them, are nevertheless 
not claimed to have anything to do with the question of the con- 
stitutionality or unconstitutionality of slavery, further than this, 
viz., that they indicate the rnle of interpretation that should be 
adopted in construing the constitution. They prove the reason- 
ableness, propriety, and therefore truth, of the rule, quoted from 
the supreme court of the United States, and adopted in the prior 
argument, as the fundamental rule of interpretation ; a rule which, 
if adhered to, unquestionably proves that slavery is unconstitu- 
tional. That rule is this. 

" Where rights are infringed, where fundamental principles are 
overthrown, where the general system of the lawst is departed 
from, the legislative intention must be expressed with irresistible 
clearness, to induce a court of justice to suppose a design to effect 
such objects." 2 Crunch, 390. 

The whole question of the constitutionality or unconstitutionality 



make the laws. So that, even then, the actual law-makers represent but little 
more than one eighth of the people. 

If the principle is to be acted upon, that the majority have a right to rule arbitra- 
rily, there is no legitimate way of carrying out that principle, but by requiring, 
either that a majority of the whole people, (or of the voters,) should vote in favor 
of every separate law, or by requiring entire unanimity in the representative bodies, 
who actually represent only a majority of the people. 

But the principle is utterly false, that a majority, however large, have any right 
to rule so as to violate the natural rights of any single individual. It is as unjust 
for millions of men to murder, ravish, enslave, rob, or otherwise injure a single 
individual, as it is for another single individual to do it. 

* Two things are necessary to a good lawyer. 1. A knoicleclge of r.atural 
law. This knowledge, indispensable to the peace and security of mankind, in their 
dealings, intercourse, and neighborhood with each other, is possessed, in some 
good measure, by mankind at large. 2. A knowledge of the rules of interpreting 
the written law. These are few, simple, natural, reasonable, just, and easily 
learned. These two branches of knowledge comprise substantially all the science, 
and all " the reason," there are in the law. I hope these considerations, in addition 
to that of understanding the constitution, may induce all, who read any portion of 
this book, to read with patience this chapter on the rules of interpretation, however 
tedious it may be. 

t In " The Unconstitutionality of Slavery," the word laws, in this rule, was 
printed law, through my inadvertence in copying the rule. The error was not di»- 



156 RULES OF INTERPRETATION. 

of slavery, is one of construction. And the real question is omy 
whether the rules, applicable to the interpretation of statutes, and 
all other legal instruments, that are enforced by courts as obliga- 
tory, shall be applied also to the interpretation of the constitution ? 
or whether these rules are to be discarded, and the worst possible 
meaning of which the words are capable put upon the instrument 
arbitrarily, and for no purpose but to sustaiyi slavery ? This is the 
question, and the whole of it. 

The validity of the rule, quoted from the supreme court, has 
not, so far as I am aware, been denied. But some of the expla- 
nations given of the rule, in the prior argument, have been called 
in question. As the whole question at issue, in regard to the con- 
stitutionality of slavery, is one solely of interpretation, it becomes 
important to sustain, not only the explanations given of this rule, 



covered until it was pointed out by Wendell Phillips. I am obliged to him for the 
correction. A case migiit be supposed, in which the difference would be important. 
But I am not aware that the correction affects any of the arguments on which the 
rule lias thus far been, or will hereafter be, brought to bear ; because, in construing 
the constitution by this rule, " the general system of the laws " must be presumed 
to be " the general system of the laws" authorized by the constitution itself, and 
not " the general system of the laws " previously prevailing in the country, if the 
two systems should happen to differ. The constitution being the supreme law, 
anything in the constitutions or laws of the states to the contrary notwithstanding, 
those constitutions and laws must be construed with reference to it ; instead of Us 
being construed with reference to them, whenever the two may appear to con- 
flict. 

Mr. Phillips, however, seems to think the difference important to this discussion ; 
because he says " the general system of the Imv might refer to the general system 
of law, as a science ;" whereas " the general system of the laws clearly relates to 
the general spirit of the laws of this ?»a<io;i, which is quite a different thing." 
But he here assumes the very point in dispute, viz., that " the general spirit of the 
consdlidional laws of this nation, (which are, in reality, its only laieg,) are a very 
<lifferent thing " from " the general system of law, as a science." So far as they 
relate to slavery, we claim that all our constitutional laws are perfectly accordant 
with " the general system of law, as a science," and this is the question to be 
determined. 

That " the general system of the laws," authorized by the constilution, and 
relating to oilier subjects than slavery, is, for the most part, at least, if not entirely, 
accordant with " law, as a science," Mr. Phillips will probably not deny, whatever 
he may think of those it authorizes in relation to slavery. But the rule of the 
court forbids that, in the matter of slavery, any construction of the constitution 
be adopted, at variance with " the general system of the laws" authorized by the 
constitution, on all other subjects, unless such intention " he expressed with irre- 
sistible clearness." " The general system of the laws," authorized liy the consti- 
tution, on all other subjects than slavery, is a very important guide for the inter- 
pretation of those clauses that have been claimed for slavery. If this guide be 
followed, it extinguishes all pretended authority for slavery — instead of supporting 
it. as Mr. Phillips' remark would imply. 



FIRST RULE, 157 

DUt also some of the other rules laid down in that argument. And 
hence the necessity of going more fully into the question of inter- 
pretation. 

FIRST RULE. 

The first rule, in the interpretation of the constitution, as of all 
other laws and contracts, is, " that the mtention of the i7istrument 
viust prevnil.^^ 

The reason of this rule is apparent ; for unless the inten- 
tion of the instrument prevail, wherefore was the instrument 
formed ? or established as law ? If any other intention is to pre- 
vail over the instrument, the instrument is not the law, but a mere 
nullity. 

The intentions of a statute or constitution are always either 
declared, or presumed. 

The declared intentions of a statute or constitution are the 
intentions that are clearly expressed in terms in the statute or 
constitution itself 

Where the intentions of statutes and constitutions are not clearly 
expressed in the instruments themselves, the law always -presuvies 
them. And it always presumes the most just and beaeficial inten- 
tions, which the words of the instruments, taken as a whole, can 
fairly be made to express, or imply. 

Statutes and constitutions, in which no intentions were declared, 
and of which no reasonable intentions could be presumed, would 
be of no legal validity. No intentions that might be attributed to 
them by mere force of conjecture, and exterior history, could be 
legally ascribed to them, or enforced as law. 

The intentions, which individuals, in discussions, conversations, 
and newspapers, may attribute to statutes and constitutions, are no 
part of the instruments themselves. And they are not of the 
slightest importance as evidence of their intentions, especially if 
they are in opposition, either to the declared, or the presumed, in- 
tentions of the instruments. If the intentions of statutes and con- 
stitutions were to be gathered from the talk of the street, there 
would be no use in writing them in terms. The talk cf the street, 
and not the written instruments, would constitute the laws. And 
the same instrument would be as various and contradictory in its 
meanings, as the various conjectures, or assertions, that might be 
heard from the mouths of individuals ; for one man's conjecture 
or assertion would be of as much legal value as another's ; and 
effect would therefore have to be given to all, if to any. 
14 



158 RULES OF INTERPRETATION. 

Those who argue for slavery, hold that " the intentions of the 
people " must prevail, instead of " the intentions of the histru- 
vient ;'''' thus falsely assuming that there is a legal distinction be- 
tween the intentions of the instrument and the intentions of the 
people. Whereas the only object of the instrument is to express 
the intentions of the people. That is the only motive that can be 
attributed to the people, for its adoption. The people established 
the constitution solely to give written and certain evidence of their 
intentions. Having their written instrument, we have their own 
testimony, their own declaration, of what their intentions are. 
The intentions of the instrument, then, and the intentions of the 
people, are identical. And it is legally a matter of indifference 
which form of expression is used ; for both legally express the 
same idea. 

But the same class of persons, who assume a distinction between 
the intentions of the instrument and the intentions of the people, 
labor to prove, by evidence extraneous to the instrument, that the 
intentions of the people were different from those the instrument 
expresses; and then they infer that the instrument must be warped 
and twisted, and made to correspond to these unexpressed intentions 
of the people. 

The answer to all this chicanery is this. The people, assuming 
that they have the right to establish their will as law, have, in 
theory, agreed upon an instrument to express their will, or their 
intentions. They have thus said that the intentions expressed in 
that instrument are their intentions. Also that their intentions, 
as expressed in the instrument, shall be the supreme law of the 
land. 

" The people," by thus agreeing that the intentions, expressed 
by their joint instrument, shall be the supreme law of the land, 
have virtually and legally contracted with each other, that, for the 
sake of having these, their written intentions, carried into effect, 
they will severally forego all other intentions, of every name and 
nature whatsoever, that conjlict with the written ones, in which 
they are all agreed. 

Now this written instrument, which is, in theory, the voluntary 
contract of each and every individual with each and every other, 
is the highest legal evidence of their intentions. It is the specific 
evidence that is required of all the parties to it. It is the only 
evidence that is required, or accepted, of any. It is equally valid 
and sufficient, in favor of all, and against all. It is the only 



FIRST RULE. 169 

evidence that is common to all. The intentions it expresses must, 
therefore, stand as the intentions of all, and be carried into effect 
as law, in preference to any contrary intentions, that may have 
been separately, individually, and informally expressed by any 
one or all the parties on other occasions ; else the contract is 
broken. 

As long as the parties ack?ioivledge the instrument as being their 
contract, they are each and all estopped by it from saying that they 
have any intentions adverse to it. Its intentions and their inten- 
tions are identical, else the parties individually contradict them- 
selves. To acknowledge the contract, and yet disavow its inten- 
tions, is perfect self-contradiction. 

If the parties wish to repudiate the intentions of the instrument, 
they must repudiate or abolish the instrument itself. If they wish 
to cha?ige the intentions of the instrument, in any one or more 
particulars, they must change its language in those particulars, so 
as to make it express the intentions they desire. But no change 
can be wrought by exterior evidence ; because the zoritten instru- 
ment, to which, and to which only, all have, in theory, agreed, 
must always be the highest evidence that the courts can liave of 
the intentions of the whole people. 

If, therefore, the fact were historically well authenticated, that 
every man in the nation had publicly asserted, within one hour 
after the adoption of the constitution, (that is, within one hour 
after he had, in theory, agreed to it,) that he did not agree to it 
intending that any or all of the principles expressed by the instru- 
ment should be established as law, all those assertions would not 
be of the least legal consequence in the world ; and for the very 
sufficient reason, that what they have said in the instrument is the 
law ; and what they have said out of it is no part of it, and has 
no legal bearing upon it. 

Such assertions, if admitted to be true, would only prove that 
the parties had lied when they agreed to the instrument ; and if 
they lied then, they may be lying now. If we cannot believe their 
first and formal assertion of their intentions, we cannot believe 
their second and informal one. 

The parlies cannot claim that they did not understand the lan- 
guage of the instrument ; for if they did not understand the lan- 
guage then, when they agreed to it, how can we know that they 
understand it now, when they dissent from it ? Or how can we 
know that they so much as understand the very language they are 



160 RULES OF INTERPRETATION. 

now using in making their denial ? or in expressing their contrary 
intentions ? 

They cannot claim that they did not understand the rules., by 
which their language, used in the instrument, would be interpreted ; 
for if they did not understand them then, how can we know that 
they understand them now ? Or how do we know that they un- 
derstand the rules, by which their present declaratons of their 
intentions will be interpreted ? 

The consequejice is, that every man must be presumed to under- 
stand a contract to which he agrees, whether he actually does 
vmderstand it or not. He must be presumed to understand the 
meaning of its words ; the rules by which its words will be inter- 
preted ; and the intentions, which its v^ords, thus interpreted, ex- 
press. Otherwise men can never make contracts that will be 
binding upon them ; for a man cannot bind himself by a contract 
which he is not presumed to understand ; and it can seldom, or 
never, be proved whether a man actually does understand his con- 
tract, or not. If, therefore, at any time, through ignorance, care- 
lessness, menial reservations, or fraudulent designs, men agree to 
instruments that express intentions different from their own, they 
must abide the consequences. The instrument must stand, as 
expressing their intentions, and their adverse intentions must fail 
of effect. 

Every one, therefore, when he agrees to a contract, judges for 
himself, and takes his oion risk, whether he understands the instru- 
ment to which he gives his assent. It is plainly impossible to 
have constitutions established by contract of the people with each 
other on any other principle than this ; for, on any other principle, 
it could never be known what the people, as a whole, had agreed 
to. If every individual, after he had agreed to a constitution, 
could set up his own intentions, his own understandings of 
the instrument, or his own mental reservations, in opposition to 
the intentions expressed by the instrument itself, the constitution 
would be liable to have as many different meanings as there were 
different individuals who had agreed to it. And the consequence 
would be, that it would have no obligation at all, as a mutual and 
binding contract, for, very likely, no two of the whole would have 
understood the instrument alike in every particular, and therefore 
no two would have agreed to the same thing. 

Each man, therefore, before he agrees to an instrument, must 
judge for himself, taking his own risk whether he understands it. 



SECOND RULE. 161 

After he has agreed to it, he is estopped, by his own instrument, 
from denying that his intentions were identical with the intentions 
sxpressed by the instrument. 

The constitution of the United States, therefore, until its lan- 
guage is altered, or the instrument itself abolished, by the people 
of the United States, must be taken to express the intentions of 
the whole people of the United States, whether it really do ex- 
press their intentions or not. It is the highest evidence of their 
intentions. It is ihe only evidence which they have all agreed to 
furnish of their intentions. All other adverse evidence is, there- 
fore, legally worthless and inadmissible. The intentions of the 
instrument, then, must prevail, as being the intentions of the peo- 
ple, or the constitution itself is at an end. 

SECOND RULE. 

The second rule of interpretation is, that " the intention of the 
constitution must be collected from its words. '"^ 

This rule is, in reality, nearly synonymous with the preceding 
one; and its reason, like that of the other, is apparent; for why 
are words used in writing a law, unless it is to be taken for granted 



* The Supreme Court of the United States say : " The intention of the instru- 
ment must prevail ; this intention must be collected from, its xcords." — 12 Wheaton, 
332. 

" The intention of the legislature is to l>e searched for in the words wliicli the 
legislature has employed to convey it." — 7 Cranch, 60. 

Story snys, "We must take it to he true, that the legislature intend precisely 
what they say." ^ — 2 Slori/s Circuit Court Rep., 6.53. 

Ruthei-forth says, " A promise, or a contract, or a will, gives us a right to what- 
ever the promiser, the contractor, or the testator, designed or intended to maive ours. 
But his design or intention, if it is considered merely as an act of his mind, cannot 
he known to anyone besides himself. When, therefore, we speak of his design or 
intention as the measure of our claim, we must necessarily be understood to mean 
the design or intention which he has made known or expressed by some outward 
mark ; because, a design or intention which does not appear, can have no more 
effect, or can no more produce a claim, than a design or intention which does not 
exist. 

" In like manner, the obligations that are produced by the civil laws of our coun- 
try arise from the intention of the legislator ; not merely as this intention is an act 
of the mind, but as it is declared or expressed by some outward sign or mark, 
which makes it known to us. For the intention of the legislator, whilst he keeps 
it to himself, produces no effect, and is of no more account, than if he had no such 
intention. Where we have no knowledge, we can be under no obligation. We 
cannot, therefore, be obliged to comply with his will, where we do not know what 
his will is. And we can no otherwise know what his will is, than by means of 
some outward sign or mark, by which this will is expressed or declared." — Ru- 
therforCh, B. 2, chap. 7, p. 307-8. 

14# 



162 RULES OF INTERPRETATION. 

that when written they contain the law ? If more was meant, why 
was not more said ? If less was meant, why was so much said ? If 
the contrary was meant, why was this said, instead of the contrary? 

To go beyond the words of a law, (including their necessary or 
reasonable implications,) in any case, is equivalent to saying that 
the written law is incomplete ; that it, in reality, is not a law, but 
only a part of one ; and that the remainder was left to be guessed 
at, or rather to be made, by the courts. 

It is, therefore, a violation of legal rules, to go beyond the words 
of a law, (including their necessary or reasonable implications,) in 
any case whatever.^ 

To go contrary to the words of a law, is to abolish the law 
itself, by declaring its words to be false. 

But it happens that the same words have such various and 
opposite meanings in common use, that there would be no cer- 
tainty as to the meaning of the laws themselves, unless there were 
some relies for determining which one of a word's various meanings 
was to be attached to it, when the word was found in a particular 
connection. Hence the necessity of rules of interpretation. Their 
office is to determine the legal meaning of a word, or, rather, to 
select the legal meaning of word, out of all the various meanings 
which the word bears in common use. Unless this selection were 
made, a word might have two or more different and contradictory 
meanings in the same place. Thus the law would be mere jar- 
gon, instead of being a certain and precise rule of action. 

These rules of interpretation have never been specially enacted 
by statute, or constitutions, for even a statute or constitution enact- 
ing them would be unintelligible or uncertain, until interpreted by 
them. They have, therefore, originated in the necessity of the 
case ; in the inability of words to express single, definite, and clear 
ideas, such as. are indispensable to certainty in the lav»r, unless 
some one of their several meanings be selected as the legal one. 

Men of sense and honesty, who have never heard of these rules 
as legal ones, but who, nevertheless, assume that written laws and 
contracts are made for just and reasonable ends, and then judge of 



* Tliis rule, tliat forbids us to go beyond the words of the law, must not be 
understood as coiiflictii)5 with the one that allows us, in certain cases, to go out of 
an instrument tojind the -meaninff of the words used in the ivstrumcnt. We may, 
in certain cases, (not in all,) and under certain limitations, as will hereafter be 
explained, go out of an instrument tojind the meaning of its jcords; but we can 
never go beyond their meaning, when found. 



SECOND RULE. 163 

their meaning accordingly, unconsciously act upon these rules in 
so doing. Their perception of the fact, that unless the meaning 
of words were judged of in this manner, words themselves could 
not be used for writing laws and contracts, without beinar liable to 
be perverted to subserve all manner of injustice, and to defeat the 
honest intentions of the parties, forces upon them the conviction, 
that the legal meaning of the words must be such, and only such, 
as (it will hereafter be seen) these rules place upon them. The 
rules, then, are but the dictates of common sense and common 
honesty, applied to determining the meaning of laws and con- 
tracts. And common sense and common honesty are all that is 
necessary to enable one to judge of the necessity and soundness of 
the rules. 

Rules of interpretation, then, are as old as the use of words, in 
prescribing laws, and making contracts. They are as necessary 
for defining the words as the words are for describing the laws 
and contracts. The words would be unavailable for writing laws 
and contracts, without the aid of the rules for interpreting them. 
The rules, then, are as much a part of the language of laws and 
contracts as are the words themselves. Their application to the 
words of laws and contracts is as much presumed to be under- 
stood, by all the parties concerned, as is the meaning of the words 
themselves. And courts have no more right to depart from, or 
violate, these rules, than to depart from, or contradict, the words 
themselves. 

The people must always be presumed to understand these rules, 
and to have framed all their constitutions, contracts, &c., with 
reference to them, as much as they must be presumed to under- 
stand the common meanings of the words they use, and to have 
framed their constitutions and contracts with reference to them. 
And why? Because men's contracts and constitutions would be 
no contracts at all, unless there were some rules of interpretation 
understood, or agreed upon, for determining which was the legal 
meaning of the words employed in forming them. The received 
rules of interpretation have been acted upon for ages ;* indeed, 
they must have been acted upon through all time, since men first 
attempted to make honest contracts with each other. As no other 
rules than these received oaes can be presumed against the par- 
lies, and as these are the only ones that can secure men^s honest 

* Kent says, ihese rules " have been accumulated by the experience, and latiticd 
fcy the approbation, of ages," — 1 Kent, 461. 



164 RULES OF INTERPRETATION, 

rights, under their honest contracts ; and, as everybody is bound 
to know that courts must be governed by fixed rules, applying the 
same to all contracts whatsoever, it must always be presumed, in 
each particular case, that the parties intended their instruments 
should be construed by the same rules by which the courts con- 
strue all others. 

Another reason why the people must be presumed to know 
these rules, at least in their application to cases where a question 
of right and wrong is involved, is, that the rules are but a transcript 
of a common principle of morality, to wit, the principle which 
requires us to attribute good motives and good designs to all the 
words and actions of our fellow-men, that can reasonably bear such 
a construction. This is a rule by which every man claims that 
his own words and actions should be judged. It is also a princi- 
ple of law, as well as of morals, and one, too, of which every 
man who is tried for an offence claims the benefit. And the law 
accords it to him. So long as there be so much as " a reasonable 
doubt " whether his words or actions evince a criminal intent, the 
law presumes a good intent, and gives him the benefit of it. Why 
should not the sam'e rule be observed, in inferring the intent of the 
whole community, from the language of their laws and constitu- 
tions, which is observed in inferring the intent of each individual 
of that community from his language and conduct? It should 
clearly require as strong proof to convict the whole community of 
a crime, (and an unjust law or constitution is one of the highest 
of all possible crimes,) as it does to convict a single individual. 
The principle, then, is the same in both cases ; and the practice of 
those who infer a bad intent from the language of the constitution, 
so long as the language itself admits of a reasonable doubt 
whether such be its intent, goes the length of overthrowing an 
universally recognized principle of law, on which the security 
of every accused person is liable to depend."* 

For these, and perhaps other reasons, the people are presumed 

* Vattelsays, "The interpretation of every act, and of every treaty, ought to he 
made according to certain rules proper to determine the sense of them, such as the 
parties concerned must naturally have understood when the act was prepared and 
accepted. 

"As these rules are founded on right reason, and are consequently approved and 
prescribed hy the law of nature, every man, every sovereign, is obliged to admit 
and follow them. If princes were to acknowledge no rules that determined tha 
sense in which the expressions ought to be taken, treaties would be only empty 
•words ; nothing could be agreed upon with security, and it would be almost ridi«5- 
ulous to place any dependence on the e.5ec\. i conventions." — Vatlel, B. 2, chap, 
17, see. 26S. 



THIRD RULE. 165 

to understand the reason and justice of these rules, and therefore, 
to understand that their contracts will be construed by them. If, 
therefore, men ever frame constitutions or contracts with the in- 
tention that they shall be construed contrarily to these rules, their 
intention must be defeated ; and for the same reason that they 
would have to be defeated if they had used words in a directly 
opposite sense to the common ones, such, for example, as using 
white when they meant black, or black when they meant white. 

For the sake of having a case for the rules to apply to, we will 
take the representative clause, embracing the word " free," (Art. 1, 
sec. 2,) which is the first and the st.j-o?igest of all the clauses in the 
constitution that have been claimed as recognizing and sanction- 
ing slavery. Indeed, unless this clause do recognize and sanction 
it, nobody would pretend that either of the other clauses do so. 
The same rules, if any, that prevent the representative clause and 
the word " free " from having any legal reference to slavery, will 
also have the same effect upon the other clauses. If, therefore, 
the argument for slavery, based upon the word " free," falls to the 
ground, the arguments based upon the words " importation of 
persons," " service and labor," &c., must also fall ; for they can 
stand, if at all, only by means of the support they obtain from the 
argument drawn from the word " free." 

THIRD RULE. 

A third rule is, that we are always, if possible, to give a word 
some meaning appropriate to the subject matter of the instrument 
itself.* 

This rule is indispensable, to prevent an instrument from degen- 
erating into absurdity and nonsense. 

In conformity with this rule, words which purport to describe 
certain classes of persons existing under the constitution, must be 
taken in a sense that will aptly describe such persons as were 
actually to exist under it, and not in a sense that will only describe 
those who were to have no existence under it. 

It would, for instance, be absurd for the constitution to provide 
that, in every ten years, there should be "added to the whole num- 

* Blackstone says, " As to the subject matter, words are always to be understood 
•as having regard thereto." — 1 Blackstone, 60. 

"We ought always to give to expressions the sense most suitable to the subject, 
or to the mattur, to which they relate." — Vatlel, B. 2., chap. 17, sec. 280. 

Other authorities on this point are given in the note at the end of this chapter. 



166 RULES OF INTERPRETATION. 

ber of free persons three fifths of all other persons," if there were 
really to be no other persons than the free. 

If, therefore, a sense correlative with slavery were given to tht 
word free, it would make the word inappropriate to the subject 
matter of the constitution, unless there were really to be slaves under 
the constitution. 

It is, therefore, inadmissible to say that the word free is used in 
the constitution as the correlative of slaves, until it be first proved 
that there loere to be slaves under the constitution. 

We must find out what classes of persons were to exist under 
the constitution, before we can know what classes of persons the 
teri?is used in the constitution apply to. 

If the word/ree had but one meaning, we might 'mkv,from the 
word itself that such persons as that word would necessarily de- 
scribe were to exist under the constitution. But since the word 
has various meanings, we can draw no certain inference from it 
alone, as to the class of j>ersons to whom it is applied. We must, 
therefore, fix its meaning in the constituti'on, by ascertaining, /ro7?» 
other parts of the instrument, what kind of " free persons," and 
also what kind of "other persons," were really to exist under the 
constitution. Until this is done, we cannot know the meaning of 
the word free, as it is used in the constitution. 

Those who say that the word free is used, in the constitution, 
in a sense correlative with slavery, assume the very point in dis- 
pute ; viz., that there were to be slaves under the constitution. 
This is the point to be proved, and cannot be assumed. A)id until 
it be j^roved, it is making nonsense of the constitution, to say that 
the word/ree is used as the correlative of slavery. 

There is no language in the constitution, that expressly declares, 
or necessarily implies, that slavery was to exist under the consti- 
tution. To say, therefore, that the word free was used as the 
correlative of slaves, is bego;ing the question that there were to be 
slaves ; it is assuming the whole ground in dispute. Those who 
argue for slaveiy, must first prove, by language that can mean 
nothing less, that slavery was to be permitted under the constitu- 
tion. Then they may be allowed to infer that the word free is 
used as its correlative. But until then, a diflferent meaning must 
be given to the word, else the clause before cited is convened into 
nonsense. 

On the other hand, in giving the word free the sense common 
at that day, to wit, a sense correlative with persons not naturalized, 



THIRD RULE. 167 

and not possessed of equal political privileges with others, we 
assume the existence of no class of persons except those whom 
the constitution itself especially recognizes, to wit, those possessing 
full political rights, as citizens, or members of the state, and those 
unnaturalized pereons who will not jwssess full political rights. 
The constitution explicitly recognizes these two classes, because it 
makes a distinction between them in the matter of eligibility to 
certain offices, and it also explicitly authorizes Congress to pass 
2aws for the naturalization of those who do not possess full rights 
us citizens. 

If, then, we take the word free in the sense correlative with 
unnaturalized persons, the word has a meaning that is already 
appropriate to the subject matter of the instrument, and requires 
no illegal assumptions to make it so. 

On the other hand, if we use the word in the sen«e correlative 
with slaves, we either make nonsense of the language of the con- 
stitution, or else we assume the very point in dispute, viz., that 
there were to be slaves under the constitution ; neither of which 
have we any right to do. 

This argument is sufficient, of itself, to overthrow all the argu- 
ments that were ever made in favor of the constitutionality of 
slavery. 

Substantially the whole argument of the advocates of slavery is 
founded on the assumption of the very fact in dispute, viz., that 
there vpas to be slavery under the constitution. Not being able to 
prove, by the words of the constitution, that there was to be any 
slavery under it, they assume that there was to be slavery, and 
then use that assumption to prove the meaning of the constitution 
itself. In other words, not being able to prove slavery by the 
constitution, they attempt to prove the meaning of the constitution 
by slavery. Their whole reasoning on this point is fallacious, 
simply because the legality of slavery, under the constitution, is 
itself a thing to be proved, and cannot be assumed. 

The advocates of slavery cannot avoid this dilemma, by saying 
that slavery existed at the time the constitution Avas adopted ; for 
many things existed at the time, such as theft, robbery, piracy, &c., 
which were not therefore to be legalized by the constitution. And 
slavery had no better constitutional or legal existence than either 
<*f these crimes. 

Besides, even if slavery had been legalized (as it was not) by 
anv of the then existing state constitutions, its case would have 



l6S RULES OF INTERPRETATION. 

been no better; for the United States constitution was to be the 
supreme law of the land, anything in the constitution or laws of 
any state to the contrary notwithstanding. The constitution 
being the supreme law, operating directly upon the people, and 
securing to them certain rights, it necessarily annulled everything 
ihat might be found in the state constitutions that was inconsistent 
with the freedom of the people to enjoy those rights. It of course 
would have annulled the legality of slavery, if slavery had then 
had any legal existence ; because a slave cannot enjoy the rights 
secured by the United States constitution. 

Further. The constitution is a political instrument, treating of 
men's political rights and privileges. Its terms must therefore be 
taken in their political sense, in order to be appropriate to the sub- 
ject matter of the instrument. The word free, in its political 
sense, appropriately describes men's political rank as free and 
equal members of the state, entitled, of right, to the protection of 
the laws. On the other hand, the Avord free, in the sense correla- 
tive with slavery, has no appropriateness to the subject matter of 
such an instrument — and why ? Because slavery is not, of itself y 
a political relation, or a political institution ; although political 
institutions may, and sometimes do, recognize and legalize it. 
But, of itself it is a merely private relation between one man and 
another, created by individztat force, and not by political authority. 
Thus a strong man beats a weaker one, until the latter will obey 
him. This is slavery, and the whole of it ; unless it be specially 
legalized. The United States constitution does not specially legal- 
ize it ; and therefore slavery is no part of the subject matter of that 
instrument. The word free, therefore, in the constitution, cannot 
be said to be used as the correlative of slavery ; because that sense 
would be entirely inappropriate to anything that is the subject 
matter of the instrument. It would be a sense which no other 
part of the constitution gives any occasion or authority for. 

FOURTH RULE. 

A fourth rule is, that where technical words are used, a techni- 
cal meaning is to be attributed to them. 

This rule is commonly laid down in the above general terms. 
It is, however, subject to these exceptions, viz., that where the 
technical sense would be inconsistent with, or less favorable to, 
iustice, or not consonant to the context, or not appropriate to the 
nature of the subject, some other meaning may be adopted. Sub^ 



FOURTH RULE. 169 

]ect to these exceptions, the rule is of great authority, for reasons 
that will hereafter appear. 

Thus, in commercial contracts, the terms and phrases used in 
them are to be taken in the technical or professional sense common 
among merchants, if that sense be consonant to the context, and 
appropriate to the nature of the contracts. 

In political contracts, the terms and phrases used in them are 
to be taken in the political and technical sense common in such 
instruments, if that sense be consonant to the context, and appro- 
priate to the subject matter of the contracts. 

Terms common and proper to express political rights, relations, 
and duties, are of course to be taken in the technical sense natural 
and appropriate to those rights, relations, and duties. 

Thus, in political papers, such terms as liberty, allegiance, repre- 
sentation, citizenship, citizens, denizens, freemen, free subjects, free- 
born subjects, inhabitants, residents, people, aliens, allies, enemies, 
are all to be understood in the technical sense appropriate to the 
subject matter of the instrument, unless there be something else, in 
the instrument itself, that shows that some other meaning is intended. 

Terms which, by common usage, are properly descriptive of the 
parties to, or members of, the compact, as distinguished from oth- 
ers, are to be taken in the technical sense, which describes them, 
as distinguished from others, unless there be, in the instrument 
itself, some unequivocal evidence that they are to be taken in a 
different sense. 

The authority of this rule is so well founded in nature, reason, 
and usage, that it is almost strange that it should be questioned. 
It is a rule which everybody, by their common practice, admit to 
be correct ; for everybody more naturally understands a word in 
its technical sense than in any other, unless that sense be incon- 
sistent with the context. 

Nevertheless, an attempt has been made by some persons to 
deny the rule, and to lay down a contrary one, to wit, that where 
a word has what they choose to call a common or popular meaning, 
and also a technical one, \\\e former '\s to be preferred, unless there 
be something, in other parts of the instrument, that indicates that 
the technical one should be adopted. 

The argument for slavery virtually claims, not only that this so 

called common and popular meaning of a word, (and especially 

of the word " free,") is to be preferred to the technical one, but 

also that this simple preference is of sufficient consequence to out- 

15 



170 



RULES OF INTERPRETATION. 



weigh all considerations of justice and injustice, and indeed all, 
or nearly all, the other considerations on which legal rules of 
interpretation are founded. Nevertheless I am not aware that the 
advocates of slavery have ever had the good fortune to find a 
single instance where a court has laid it down, as a rule, that any 
other meaning is, of itself, preferable to the technical one ; much 
less that that preference was sufficient, in cases where right and 
wrong were involved, to turn the scale in favor of the wrong. 
And if a court were to lay down such a rule, every one is at liberty 
to judge for himself of its soundness. 

But inasmuch as this pretended rule is one of the main pillars, 
if not the main pillar, in support of the constitutionality of slavery, 
it is entitled to particular consideration. 

The falsehood of this pretended rule will be evident when it is 
considered that it assumes that the technical meaning of a word is 
not the common and popular one ; whereas it is the very common- 
ness, approaching to uniformity, with which a word is icsed in a 
particular sense, in relation to particular things, that makes it 
technical.* 

A technical word is a word, which in one profession, art, or 
trade, or in reference to particular subjects, is generally, or uni- 
formly, used in a particular sense, and that sense a somewhat 
different one from those in which it is generally used out of that 
profession, art, or trade, or in reference to other subjects. 

There probably is not a trade that has not its technical words. 
Even the cobbler has his. His ends are generally quite different 
things from the ends of other people. If we hear a cobbler speak 
of his ends, we naturally suppose he means the ends of his threads, 
because he has such frequent occasion to speak of and use them. 
If we hear other people speak of their ends, we naturally suppose 
that they mean the objects they have in view. With the cobbler, 
then, eiids is a technical word, because he frequently or generally 
uses the word in a different sense from that in which it is used by 
other people. 

Mechanics have very many technical words, as, for instance, to 
describe particular machines, parts of machines, particular processes 



* It was, for example, the commonness, or rather the uniformity, with which the 
word "free" had been used — up to the time the constitution was adopted — to 
describe persons possessed of political and other legal franchises, as distinguished 
from persons not possessed of the same franchises, that made the word " free " a 
technical one in the law. 



FOURTH RULE. 17) 

of labor, and particular articles of manufacture. And when we 
hear a mechanic use one of these words, we naturally suppose 
that he uses it in a technical sense — that is, with reference to his 
particular employment, machinery, or production. And why do 
we suppose this ? Simply because it is more common for him to 
use the word in that sense than in any other, especially if he is 
taliiing of anything in regard to which that sense would be 
appropriate. If, however, his talk is about some other subject, in 
relation to which the technical sense of the word would not be 
appropriate, then we conclude that he uses it, not in the technical 
sense appropi'iate to his art, but in some other sense more appro- 
priate to the subject on which he is speaking. 

So, if we were to hear a banker speak of " the days of grace 
having expired," we should naturally attach a very different 
meaning to the words from what we should if we were to hear 
them from the pulpit. We should suppose, of course, that he used 
them in the technical sense appropriate to his business, and that 
he had reference only to a promissory note that had not been paid 
when due. 

If we were to hear a banker speak of a check, we should suppose 
he used the word in a technical sense, and intended only an order 
for money, and not a slop, hindrance, or restraint. 

So, if one farmer were to say of another, He is a good hitsband, 
we should naturally infer that he used the word husband in the 
technical sense appropriate to his occupation, meaning that he cul- 
tivated and managed his farm judiciously. On the other hand, if 
we were to hear lawyers, legislators, or judges, talking of hus- 
bands, we should infer that the word was used only in reference to 
men's legal relations to their wives. The word would be used in 
a technical sense in both cases. 

So, if we were to hear a man called a Catholic priest, we should 
naturally infer that the word Catholic was used in its technical 
sense, that is, to describe a priest of the Catholic persuasion, and 
not a priest of a catholic, liberal, and tolerant spirit. 

These examples might be multiplied indefinitely. But it will 
be seen from those already given that, so far from the technical 
sense and the common sense of words being opposed to each other, 
the technical sense is itself the common sense in which a word is 
used with reference to particular subjects. 

These examples also show how perfectly natural, instead of un- 
natural, it is for us to attribute the technical meaning to a word, 



172 RULES OF INTERPRETATION. 

whenever we are talking of a subject in relation to which that 
meaning is appropriate. 

Almost every word of substantive importance, that is of frequent 
use in the law, is used in a technical sense — that is, in a sense 
having some special relation either to natural justice, or to men's 
rights or privileges under the laws. 

The word liberty^ for instance, has a technical meaning in the 
law. It means, not freedom from all restraint, or obligation ; not 
a liberty to trespass with impunity upon other men's rights ; but 
only that degree of liberty which, of natural right, belongs to a 
man ; in other words, the greatest degree of liberty that he can 
exercise, without invading or immediately endangering the rights 
of others. 

Unless nearly all words had a technical meaning in the law, it 
would be impossible to describe laws by words ; because words 
have a great variety of meanings in common use ; whereas the law 
demands certainty and precisioji. We 7vust know the precise 
meaning of a word, before we can know what the law is. And 
the technical meaning of a word is nothing more than a precise 
meaning, that is appropriate, and commonly applied, to a particular 
subject, or class of subjects. 

How would it be possible, for instance, to have laws against 
murder, unless the word murder, or some other word, were under- 
stood, in a technical sense, to describe that particular mode of kill- 
ing which the law wishes to prohibit, and which is morally and 
legally distinguishable from all other modes of killing ? 

So indispensable are precision and certainty, as to the meaning 
of words used in laws, that where a word has not a technical 
meaning already known, the legislature frequently define the 
meaning they intend it shall bear in particular laws. Where this 
is not done, the courts have to give it a precise and definite mean- 
ing, before the law can be administered ; and this precise meaning 
they have to conjecture, by reference to the context, and to the 
presumed object of all laws, justice. 

What perfect chaos would be introduced into all our existing 
laws and contracts, if the technical meanings of all the words used 
in them were obliterated from our minds. A very large portion 
of the laws and contracts themselves would be substantially abol- 
ished, because all certainty as to their meaning would be extin- 
guished. Suppose, for instance, the technical meanings of liberty, 
trial by jury, habeas corpus, grand jury, petit jury, murder, rape 



FOITRTH RULE. 173 

arson, theft, indictment, trial, oath, testimony, witness, court, 
verdict, judgment, execution, debt, dollar, bushel, yard, foot, cord, 
acre, rod, pound, check, draft, order, administrator, executor, guar- 
dian, apprentice, copartner, company, husband, wife, marriage, 
lands, goods, real estate, personal estate, highway, citizen, alien, 
subject, and an almost indefinite number of other words, as they 
now stand in our laws and contracts, were at once erased from our 
minds, and the legal meanings of the same words could only be 
conjectured by the courts and people from the context, and such 
other circumstances as might afford grounds for conjecture. Sup- 
pose all this, and where would be our existing laws and contracts, 
and the rights dependent upon them ? We might nearly as well 
throw our statute-books, and all our deeds, notes, and other con- 
tracts, into the fire, as to strike out the technical meanings of the 
words in which they are written. Yet for the courts to disregard 
these technical meanings, is the same thing as to strike them out 
of existence. 

If all our constitutions, state and national, were to be annulled 
at a blow, with all the statutes passed in pursuance of them, it 
would hardly create greater confusion as to men's rights, than 
would be created by striking out from men's minds all knowledge 
of the technical meanings of the words now used in writing laws 
and contracts. And the reconstruction of the governments, after 
such an abolition of them, would be a much less labor than the 
reconstruction of a legal language, in which laws and contracts 
could be written with the same conciseness and certainty as now. 
The former would be the work of years, the latter of centuries. 

The foregoing considerations show in what ignorance and folly 
are founded the objections to the technical meanings of words used 
in the laws. 

The real difference between the technical meaning of a word, 
and any other meaning, is just the difference between a meaning 
that is common, certain, and precise, and one that is, at best, less 
common, less certain, and less precise, and perhaps neither com- 
mon, certain, nor precise. 

The authorities in favor of the technical meaning, are given in 
the note, and are worthy of particular attention.* 

* " Terms of art, or technical terms, must be taken according to the acceptation 
of the learned in each art, trade, and science." — 1 Blackstone, 59. 

" When technical words are used, they are to be understood in their technical 
sense and meaning, unless the contrary clearly appears." — 9 Pickering; 514. 

" The words of a statute are to be taken in their natural and ordinary significa- 

15* 



174 RULES OF INTERPRETATION. 

The argument, and the whole argiiment, so far as I know, in 
favor of what is called the common or popular meaning, is, that 
that meaning is supposed to be better known by the people, and 
therefore it is more probable they would use it, than the other. 

lion and import ; and if technical words are used, they are to be taken in a tech- 
nical sense." — I Kent, 461. 

Lord Rllenborough says, " An agreement is to be construed according to its 
sense and irieaning, as collected in the first place fronn the terms used in it, which 
terms are themselves to be understood in their plain, ordinary, and popular sense, 
unless tkcij have generally, in, respect to the subject matter, as by Ike Icnoion usage 
of trade or the like, acquired a peculiar sense, distinct from the popular sense of 
the same words ; or uiilcss the context evidently points out that they must, in the 
particular instance, and in order to effect the immediate intention of the parties to 
that contract, be understood in some other special and peculiar sense." — 4 East, 
135; cUcd in Chilly on Contracts, 80. 

Chitty adds, " The same rule applies to the construction of acts of parliament," 
and cites several authorities. 

" In the enactment of laws, when terms of art, or peculiar phrases, are made use 
of, it must he supposed that the legislature have in view the subject matter about 
which such terms or phrases are commonly employed." — 1 Pickering, 261. 

" If a statute make use of a word, the meaning of which is well known at the 
common law, the word shall be understood in the same sense it was understood at 
the common law." — Bacon^s Abridg. Stat., I., 29. 

" Technical terms, or terms proper to the arts and sciences, ought commonly to 
be interpreted according to tlie definition given of them by the masters of the art, 
the person versed in the knowledge of the art or science to which tlie term belongs. 
I say commonly ; for this rule is not so absolute, that we cannot, or even ought 
not, to deviate from it, when we have good reasons to do it ; as, for instance, if it 
was proved that he who speaks in a treaty, or in any other public piece, did not 
understand the art or science from which he borrowed the term, that he knows not 
its force as a technical word: that he has employed it in a vulgar sense, &c." — 
Valtcl, B. 2, ch. ir, sec. 276. 

" In things favorable," (" things favorable " he defines to mean " things useful 
and salutary to human society,") " the terms of art ought to be taken in the fullest 
extent they are capable of; not only according to common use, but also as technical 
terms, if he who speaks understands the art to which those terms belong, or if he 
conducts himself by the advice of men who understand that art. 

" But we ought not from this single reason, that a thing is favorable, to take the 
terms in an improper signification ; this is only allowable to be done, to avoid 
absurdity, injustice, or the nullity of the act, as is practised on every subject. For 
we ought to take the terms of an act in their proper sense, conformable to custom, 
at least, if we have not very strong reasons for deviating from it." — Vattel, B. 2. 
eh. 17, sec. 307. 

" Where technical words are used, the technical meaning is to be applied to them, 
unless it is repelled by the context. But the same word often possesses a technical and 
a common sense. In such a case the latter is to be preferred, unless some attend- 
ant circumstance points clearly to the former." — 1 Slory^s Comm. on Const., 438. 

It will be observed that every one of these authorities, except the single one 
from Story, gives the preference to the technical meaning, over any of the other 
meanings which a word may have. The latter branch of Story's rule gives the 
preference to the other meaning over the technical one. 

Admitting, for the sake of the argument, that the latter branch of Story's rule is 



FOURTH RULE. 175 

But this argument, if not wholly false, is very shallow and friv- 
olous; for everybody is presumed to know the laws, and therefore 
they are presumed to be familiar with the technical meanings of 
all the technical words that are of frequent use in writing the laws. 

correct, still the meaning of the word "free," in the constitution, is not thereby 
altered; because his rule admits that if "some attendant circumstance points 
clearly to the technical meaning," that meaning is to he adopted. Now every 
"attendant circumstance" that can legally be taken into consideration, "points 
clearly to the technical meaning" — and why? Because that meaning alone is 
consistent with justice, appropriate to the subject matter of tiie instrument, con- 
sistent with the idea that all the parties to the instrument could have reasonably 
agreed to it, (an essential point, as will hereafter be seen,) consistent with all the 
general provisions of the instrument. If the other meaning be adopted, all the 
general provisions of the instrument are either contradicted outright, or have to be 
taken subject to limitations and exceptions which are nowhere expressed, and 
which would not only exclude one sixth of " the people of the United States " from 
the operation of the constitution, established in their name, and for their benefit, 
but would actually sanction the greatest wrongs against them. 

The result, then, is, not merely that " sovne attendant circumstance," (although 
the rule admits that that would be sufficient to turn the scale,) but that every attend- 
ant circumstance, points to the technical meaning as the true one. 

There is, also, in the same clause with the word " free," one attendant circum- 
stance which points clearly to the technical meaning ; and that is, that "all other 
persons " than the free, are to be represented and taxed as liiree fifths units. Now 
there is no propriety in representing or taxing slaves at all, as persons ; but there 
is a special propriety in representing and taxing aliens as three fifths units, as will 
more fully appear hereafter. 

But, in point of fact, Story's rule destroys itself, for the two branches of it flatly 
contradict each other. The ^rst branch says, that " where technical words are 
used, the technical meaning is to be applied to them, unless it is repelled by the 
contest." The second branch says, that "the same word often possesses a tech- 
nical and a common sense. In such case the latter is to be preferred, unless 
some attendant circumstance points clearly to the former." 

It might be thought, on a careless reading of this rule, that there was no contra- 
diction in it ; that the first branch of it referred to a case where a word had only 
one meaning, and that a technical one ; and that the latter branch referred to a case 
■where a word had two or more meanings. But, in reality, there is probably not a 
single technical word in the language, that has not one or more other meanings 
beside the technical one ; and it seems impossible there should be such a word, 
because the very meaning of a technical word is a word which, in one profession, 
art, or trade, is used in a somewhat difierent sense from what it is out of that pro- 
fession, art, or trade. But be this as it may, it is evident that the first branch of 
the rule as much refers to a word having two meanings, as does the latter branch 
of it ; for it says " the technical meaning is to be applied, unless it be repelled by 
the context." What is the inference from this proviso? Why, plainly, that if 
the technical meaning "be repelled by the context," the other meaning is to be 
adopted. This of course implies that the word has another meaning;, vhich may 
be adopted if the context require it. 

If, then, there are two meanings to the words in each case, the two branches of 
this rule flatly contradict each other. 

The first branch of the rule is given by Story, and is sustained by all the other 



176 RULES OF INTERPRETATION. 

And this presumption of law corresponds with the general fact. 
The mass of the people, who are not learned in the law, but who 
nevertheless have general ideas of legal matters, naturally under- 
stand the words of the laws in their legal senses, and attach their 
legal senses to them without being aware that the legal sense is a 
technical one. They have been in the habit of thinking that the 
technical meaning of words was something dark and recondite, (sim- 
ply because some few technical terms are in another language than 
the English,) when in reality they themselves are continually using 
a great variety of words, indeed, almost all important words, in a 
technical or legal sense, whenever they are talking of legal matters. 
But whether the advocates of slavery can, or cannot, reconcile 
themselves to the technical meaning of the word " free," they can- 
not, on their own construction of the constitution, avoid giving the 
word a precise and technical sense, to wit, as the correlative of 
slavery, as distinguished from all other forms of restraint and 
servitude. 



authorities cited. The second branch is Story's own, sustained by nobody. The 
reader will judge which is sustained by reason. 

But, in truth, Story has himself laid down the true rule more accurately in 
another place, as follows : 

" Where the words admit of two senses, each of which is conformable to common 
nsage, that sense is to be adopted which, without departing from the literal import 
of the words, best harmonizes with the nature and objects, the scope and design, 
of the instrument." — 1 Comm. on Const.. 3S7. 

One other authority, which has fallen under my eye, ought to be noticed, lest it 
be misunderstood. It is this; 

"The language of a statute is not to be construed according to technical rules, 
unless such be the apparent meaning of the legislature." — 14 Mass. Rep., 92. 

This language, taken independently of the context, would convey the idea that 
the adoption of the technical meaning was a matter of indifference ; or perhaps 
even that another meaning was ratiier to be preferred to the technical one. 

But it will be seen, on examining the report from which this extract is taken, 
that the court did not at all intend to deny, but on the contrary to admit, that the 
general rule was, that the technical meaning was to be preferred ; and that they 
only intended to assert that the rule in favor of the technical meaning was not so 
imperative that it could not be departed from in a case where " manifest justice " 
would be promoted by the departure ; for they plead, 05 a justification for depart- 
ing from the technical meaning, that in that particular case, "ma;iifest justice" 
will be subserved by a different construction. 

Thus have been presented all the authorities on this point, that happen now to 
be within my knowledge. Many more of the same kind might doubtless be found. 
I am aware of no contrary one, unless the single one cited from Story be so es- 
teemed. 

The conclusion, both from reason and authority, evidently is, that the technical 
meaning is the preferable one in all cases, except where justice, or some other legal 
object, will be promoted by adopting some other. 



FOURTH RULE. 177 

The word slaves, if it had been used in the constitution, (instead 
of the words " all other persons,") would have itself been held to 
be used in a technical sense, to wit, to designate those persons who 
were held as chattels, as distinguished from serfs, villeins, appren- 
tices, servants for years, persons under twenty-one years of age, 
prisoners of war, prisoners for debt, prisoners for crime, soldiers, 
sailors, &c., &c. The word slaves, then, being technical, the word 
free must necessarily have been taken in a technical sense, to wit, 
as the precise correlative of chattel slaves, and not as the correlative 
of persons held under any of these other forms of restraint or servi- 
tude. So that on the score of technicality, (even if that were an 
objection,) nothing would be gained by adopting the sense correla- 
tive with slaves. 

But it is a wholly erroneous assumption that the use of the word 
^^free," in a sense correlative with slaves, was either a common or 
popular use of the tvord. It was neither common nor popular, if 
we may judge of that time by the present; for now such a use of 
it is seldom or never heard, unless made with special reference to 
the classification which it is assumed that the constitution has 
established on that point. 

The common and popular classification of the people of this 
country, with reference to slavery, is by the terms, tvhite, free col- 
ored, and slaves^ We do not describe anybody as free, except the 
free colored. The term lohite carries with it the idea of liberty ; 
and it is nearly or quite universally used in describing the white 
people of the South, as distinguished from the slaves. 

But it will be said by the advocates of slavery, that the term 
white was not used in the constitution, because it would not include 
all the free ; that the term free was used in order to include both 
white and free colored. But this assertion is but another wholly 
gratuitous assumption of the facts, that there were to be slaves 
under the constitution, and that representation and taxation were 
to be based on the distinction between the slaves and the free ; both 
of which points are to be proved, not assumed. 

If there were to be slaves under the constitution, and if repre- 
sentation and taxation were to be based upon the distinction between 
the slaves and the free, then the constitution undoubtedly used the 
word free, instead o^ tohite, in order to include both the white and 
free colored in the class of units. But if, as we are bound to pre- 
sume until the contrary is proved, there were to be no slaves under 
the constitution, or if representation and taxation were not founded 



178 RULES OF INTERPRETATION. 

on the distinction between them and the free; then the constitution 
did not use the word/ree for such a purpose. The burden is upon 
the advocates of slavery to prove, first, that there were to be slaves 
under the constitution, and, secondly, that representation and taxa- 
tion were to be based on the distinction between them and the free, 
before they can say that the word free was used for the purpose of 
including the white and free colored. 

Now the whole argument, or rather assertion, which the advo- 
cates of slavery can offer in support of these points, which they are 
necessitated to prove, is, that the word free is commonly and pop- 
ularly used as the correlative of slaves. That argument, or asser- 
tion, is answered by the fact that the word/ree is 7iot commonly or 
popularly used as the correlative of slaves ; that the terms white 
and free colored are the common terms of distinction between the 
free and the slaves. Now these last named facts, and the argu- 
ment resulting from them, are not met at all, by saying that if 
there were to be slaves, and if representation and taxation were to 
be based on the distinction between them and the free, the word 
free would then have been used, in preference to any other, in 
order to include the free colored in the same class with the whites. 

It must first be proved that there were to be slaves under the 
constitution, and that representation and taxation were to be based 
on the distinction between them and the free, before it can be said 
that the word free was used in order to include both white and free 
colored. Those points not being proved, the allegation, founded 
on the assumption of them, is good for nothing. 

The use of the word free, then, in a sense correlative with 
slavery, not being the common and popular use of the word at the 
time the constitution was adopted, all the argument, founded on 
that assumption, falls to the ground. 

On the other hand, the use of the word/ree, in a political sense, 
as correlative either with aliens, or with persons not possessed of 
equal political privileges with others, ivas the universal meaning 
of the word, in all documents of a fundamental and constitutional 
character, up to the tinie when the constitution of the United States 
was adopted — (that is, when it was used, as it is in the United 
States constitution, to describe one person, as distinguished from 
another living under the same government.) Such was the mean- 
ing of the word in the colonial charters, in several of the State 
constitutions existing in 17S9, and in the articles of confederation 
Furthermore, it was a term that had very recently been in common 



FOURTH RULE. 179 

flse in political discussions, and had thus been made perfectly 
familiar to the people.^ For example, the discussions immediately 
preceding the revolution, had all, or nearly all, turned upon the 
rights of the colonists, as '■'■free British subjects." In fact, the 
political meaning of the word/ree was probably as familiar to the 
people of that day as the meaning of the word citizen is now ; 
perhaps, indeed, more so, for there is some controversy as to the 
legal meaning of the word citizen. So that all the argument 
against the technical sense of the term, on the ground of its not 
beinof the common sensoj is founded in sheer ignorance or fraud.* 

Finally ; unless the word free be taken in the technical sense 
common at that day, it is wholly an unsettled matter what sense 
should be given to it, in the constitution. The advocates of slav- 
ery take it for granted that, if it be not taken in its common and 
technical sense, it must be taken in the sense correlative with slav- 
ery. But that is all gratuitous. There are many kinds of free- 
dom besides freedom from chattel slavery ; and many kinds of 
restraint besides chattel slavery; restraints, too, more legitimate 
in their nature, and better legitimated under the laws then exist- 
ing, than slavery. And it may require a great deal more argument 
than some persons imagine, to settle the meaning of the word/?'ee, 
as used in the constitution, if its technical meaning be discarded. 

I repeat, it is a wholly gratuitoiis assumption that, if the techni- 
cal meaning of the word free be discarded, the sense correlative 
with slavery must be adopted. The word '■'■free,'" in its common 
and popular sense, does not at all imply, as its correlative, either 
property in man, or even involuntary service or labor. It, there- 
fore, does not imply slavery. It implies, as its correlative, simply 
restraint. It is, of itself wholly indefinite as to the kind of 
restraint implied. It is used as the correlative of all kinds of 
restraint, imprisonment, compulsion, and disability, to which man- 
kind are liable. Nothing, therefore, can be inferred from the wora 
alone, as to the particular kind of restraint implied, in any case. 
It is indispensable to know the subject matter, about which the 
word is used, in order to know the kind of restraint implied. And 



* Vattd says, " Languages vary incessantly, and the signification and force of 
words change with time. When an ancient act is to be interpreted, we should 
know the common use of the terms at the time when it was written." — B. 2, ch. 
17, sec. 272. 

He also says, " In the interpretation of treaties, pacts, and promises, we ou',''ht 
iiot to deviate from the common use of language, at least, if we have not very strong 
reasons for it." — Same sec. 



180 EULES OF INTERPRETATION. 

if the word had had no technical meaning appropriate to the sub- 
ject matter of the constitution, and if no other part of the constitu- 
tion had given us any light as to the sense of the word in the 
representative clause, we should have been obliged to conjecture its 
correlative. And slavery is one of the last correlatives that we 
should have been at liberty to adopt. In fact, we should have 
been obliged to let the implication remain inoperative for ambi- 
guity, and to have counted all men as " free," (for reasons given 
under rule seventh,) rather than have adopted slavery as its cor- 
relative. 

FIFTH RULE. 

A fifth rule of interpretation is, that the sense of every word, 
that is ambiguous in itself, must, if j^ossible, be determined by 
reference to the rest of the instrument. 

The importance of this rule will be seen, when it is considered 
that the only alternatives to it are, that we must go out of the 
instrument, and resort to conjecture, for the meaning of ambiguous 
words. 
. The rule is an universal one among courts, and the reasons of 
it are as follows : — 

Vattel says, " If he, who has expressed himself in an obscure or 
equivocal manner, has spoken elsewhere more clearly on the same 
subject, he is the best interpreter of himself. We ought to interpret 
Ms obscure and vague ezpressimis, in such a manner, that they may 
agree ivith those terms that are clear and without ambiguity, 
which he has iised elsewhere, either in the same treaty, or in some 
other of the like kind. In fact, while we have no proof that a man 
has changed his mind, or manner of thinking, it is presumed that 
his thoughts have been the same on the same occasions ; so that 
if he has anywhere clearly shown his intention, with respect to 
anything, we ought to give the same sense to what he has else- 
where said obscurely on the same affair." — B. 2, ch. 17, sec. 
284. 

Also ; " Frequently, in order to abridge, people express imper- 
fectly, and with some obscurity, what they suppose is sufficiently 
elucidated by the things that preceded it, or even what they pro- 
pose to explain afterwards; and, besides, the expressions have a 
force, and sometimes even an entirely different signification, ac- 
cording to the occasion, their connection, and their relation toother 
words. The connection and train of the discourse is also another 
source of interpretation. We ought to consider the lohole discourse 
together, in order perfectly to conceive the sense of it, and to give 
to each expression, not so much the signification it may receive in 



FIFTH RULE. 181 

itself, as that it ought to have from the thread and spirit of the 
discourse. This is the maxim of the Roman law : Incivile est, nist 
iota lege perspecta una aliqua particula ejus proposita, judicare, 
vel respondere." (It is improper to judge of, or answer to, any 
one thing proposed in a law, unless the whole law be thoroughly 
examined.) — Same, sec. 285. 

Also ; " The connection and relation of things themselves, serve 
also to discover and establish the true sense of a treaty, or of any 
other piece. The interpretatioti oJight to be made in such a man- 
ner, that all the parts appear consonant to each other ; that tohat 
follows agree with what we'nt before; at least, if it does not mani- 
festly appear, that by the last clauses, something is changed that 
icent before. For it is presumed that the authors of the treaty 
have had an uniform and steady train of thought ; that they did not 
desire things which ill agreed with each other, or contradictions ; 
but rather that they have intended to explain one thing by another ; 
and, in a word, that one and the same spirit reigns throughout the 
same work, or the same treaty." — Same, sec. 286. 

The Sup. Court of Mass. says, " When the meaning of any 
particular section or clause of a statute is questioned, it is proper 
to look into the other parts of the statute ; otherwise, the different 
sections of the same statute might be so construed as to be repug- 
nant." — 1 Pickering, 2^. 

Coke says, " It is the most natural and genuine exposition of a 
statute to construe one part of the statute by another part of the 
same statute." — Co. Lit., 381, b. 

The foregoing citations indicate the absolute necessity of the 
rule, to preserve any kind of coherence or congruity between the 
different parts of an instrument. 

If we were to go out of an instrument, instead of going to other 
parts of it, to find the meaning of every ambiguous word, we 
should be liable to involve the whole instrument in all manner of 
incongruities, contradictions, and absurdities. There are hardly 
three consecutive lines, of any legal instrument whatever, the 
sense of which can be understood without reference to other parts 
of the instrument. 

To go out of an instrument, instead of going to other parts of it, 
to find the sense of an ambiguous word, is also equivalent to say- 
ing that the instrument itself is incomplete. 

Apply this rule, then, to the word "/ree," and the words "all 
other persons." The sense of these words being ambiguous in 
themselves, the rest of the instrument must be examined to find 
the persons who may properly be denominated ''free persons," 
urn! " all other persons." In making this examination, we shall 
16 



1S2 RULES OF INTERPRETATION. 

find no classes mentioned answering to these descriptions, but the 
native and naturalized persons on the one hand, and those not 
naturalized on the other. 



SIXTH RULE. 

A sixth rule of interpretation, and a very important, inflexible, 
and universal one, applicable to cofitracts, is, that a contract must 
never, if it be possible to avoid it, be so construed, as that any one 
of the parties to it, assuming him to understand his rights, and to 
be of competent mental capacity to make obligatory^ contracts, 
may not reasonably be presumed to have consented to it. 

If, for instance, two men were to form a copartnership in busi- 
ness, their contract, if its language will admit of any other possible 
construction, must not be so construed as to make it an agreement 
that one of the partners shall be the slave of the other ; because 
such a contract would be unnatural, unreasonable, and would 
imply that the party who agreed to be a slave was incompetent 
to make a reasonable, and therefore obligatorj% contract.! 

This principle applies to the constitution of the United States, 
and to all other constitutions that purport to be established by " the 
people ;" for such constitutions are, in theory, but contracts of the 
people with each other, entered into by th-em severally for their 
individual security and benefit. It also applies equally to all 
statutes made in pursuance of .such constitutions, because the 
statutes derive their authority from the constitutional consent or 
contract of the people that such statutes may be enacted and en- 
forced. The authority of the statutes, therefore, as much rests on 
contract, as does the authority of the constitutions themselves. To 
deny that constitutions and statutes derive their authority from 
contract, is to found the government on arbitrary power. 

By the rule laid down, these statutes and constitutions, there- 
fore, must not be construed, (unless such construction In' unavoid- 
able,) so as to authorize anything whatever to which every single 
individital of " the people" may not, as competent men, knowing 

* Contracts made by persons mentally incompetent to make reasonable contracts, 
are not " oblisatory." 

t Although the greatest discretion that is within the limits of reason, is allowed 
to parties in making contracts, yet contracts manifestly unreasonable are not 
held obligatory. And all contracts are unreasonalile that purport to surrender one's 
natural rights. Also, all contracts that purport to surrender any valuable acquired 
rights, as property, for example, without any equivalent, or reasonable motive. 



SIXTH RULE, 183 

their Tights, reasonably be presumed to have freely and voluntarily 
assented. 

Now the parties to the contract expressed in the constitution of 
the United States, are " the people of the United States," that is, 
the lohole people of the United States. The description given of 
the parties to the constitution, as much includes those " people of 
the United Stales " who were at the time treated as slaves, as 
those who were not. The adoption of the constitution was not, in 
theory, the exercise of a right granted to the people by the State 
legislatures, but of the natural original right of the people them- 
selves, as individuals. {This is the doctrine of the supreme court, 
as will presently appear.) The slaves had the same natural com- 
petency and right to establish, or consent to, government, that 
others had ; and they must be presumed to have consented to it 
equally with others, if the language of the cont^tilution implies it. 
We certainly cannot go out of the constitution to find the parties 
to it. And the corsstitution aflbrds no legal ground whatever for 
separating the then " people of the United States " into two classes, 
and saying that one class were parties to the constitutional con- 
tract, and that the other class were not. There would be just as 
much reason in saying that the terms " the people " used in the 
constitutions of Massachusetts, Maine, New Hampshire, and Ver- 
mont, to describe the parties to those constitutions, do not include 
aU " the people " of those States, as there is for saying that all 
" the people of the United States " are not included in the consti- 
tutional description of them, and are not, therefore, parties to the 
constitution of the United States, 

We are obliged to take this term, " the people," in its broadest 
sense, unless the instrument itself have clearly and palpably im- 
posed some restriction upon it. 

It is a universal rule of courts, that where justice will be pro- 
moted by taking a word in the most comprehensive sense in 
which it can be taken consistently with the rest of the instru- 
ment, it must be taken in that sense, in order that as much 
justice as possible may be accomplished. On the other hand, 
where a word is unfavorable to justice, it must be taken in its 
most restricted sense, in order that as little injustice as possible 
may be accomplished.* 

* VaUel says, " When the subject relates to things favorable " — (in sec. 302, he 

defines "things favorable " to be things " usefiil and salutary to human society,") 

- " we ought to give the terms all tlie extent they are capable of in common use ; 



184 RULES OF INTERPRETATION. 

In conformity with this rule, the words, " the people of the 
United States," would have to be taken in their most extensive 
sense, even though they stood but on an equal ground with other 
words in the instrument. But, in fact, they stand on privileged 
ground. Their meaning is to be deter?nined before we proceed to 
the interpretation of the rest of the instr^tment. The first thing to 
be ascertained, in regard to an instrument, always is, who are the 
parties to it ; for upon that fact may depeftd very many important 
things in the construction of the rest of the instrument. In short, 
the body of the instrument is to be interpreted with reference to 
the parties, and not the parties conjectured by reference to the 
body of the instrument. We must first take the instrument's own 
declaration as to who the parties are ; and then, if possible, make 
the body of the instrument express such, and only such, intentions, 
as all the parties named may reasonably be presumed to have 
agreed to. 

Assuming, then, that all "the people of the United States" are 
parties to the constitutional contract, it is manifest, that it cannot 
reasonably be presumed that any, even the smallest, portion of 
them, knowing their natural rights, and being competent to make 
a reasonable contract of government, would consent to a constitu- 
tion, that should either make them slaves, or assist in keeping them 
in slavery. Such a construction, therefore, must not be put upon 
the contract, if the language admits of any other. This rule alone, 
then, is sufficient to forbid a construction sanctioning slavery. 

It may, perhaps, be argued that the slaves were not parties to 
the constitution, inasmuch as they never, in fact, consented to it. 
But this reasoning would disfranchise half the population ; for 
there is not a single constitution in the country — state, or national 
— to which one half of the people who are, in theory, parties to it., 
ever, in fact and in form., agreed. Voting for and under a consti- 
tution, are almost the only acts that can, with any reason at all, be 
considered di. formal assent to a constitution. Yet a bare majoritjr 



and if a term has many significations, the most extensiTe eught to be pTcferred." — 
5. 2, ch. 17, sec. 307. 

" In relation to things favorable, the most extensive signification of the terms is 
more agreeable to equity than their confinetl signification." — Same. 

" We should, in relation to things odious," — (in sec. S02, be defines " ds odi- 
ous, everything that, in its own nature, is rather hurtful than of use to the human; 
race,") — "take the terms in the most confined sense, and even, to a certain 
degree, may admit the figurative, to remove the burdensome consequences of ♦he- 
proper and literal setise, or what it contains that is odious." — Same, sec. 308. 



SIXTH RULE. 185 

of the adult males, or about one tenth of the whole people, is the 
largest number of " the people" that has ever been considered 
necessary, in this country, to establish a constitution. And after 
it is established, only about one fifth of the people are allowed to 
vote under it, even where suffrage is most extended. So tliat no 
formal assent to a constitution is ever given by the people at large. 
Yet the constitutions themselves assume, and virtually assert, that 
all "the people" have agreed to them. They must, there- 
fore, be construed on the theory that all have agreed to them, 
else the instruments themselves are at once denied, and, of course, 
invalidated altogether. No one, then, who upholds the validity 
of the constitution, can deny its own assertion, that all " the peo- 
ple " are parties to it. Besides, no one, unless it be the particular 
individuals who have not consented, can take advantage of the 
fact that they have not consented. 

And, in practice, we do not allow even such individuals to 
take advantage of the fact of their non-consent, to avoid the bur- 
dens imposed by the ijistrument ; and not allowing the individuals 
themselves to take advantage of it for that purpose, no other per- 
son, certainly, can be allowed to take advantage of it to shut them 
out from its protection and benefits. 

The consent, then, of "the people" at large is presumed, 
whether they ever have really consented, or not. Their consent 
is presumed only on the assumption that the rights of citizenship 
are valuable and -beneficial to them, and that if they understood 
that fact, they would willingly give theit consent in form. Now, 
the slaves, if they understood that the legal effect of their consent- 
ing to the constitution would be " to secure the blessings of liberty 
to themselves and their posterity," would doubtless all be as ready 
to give their actual assent to it, as any other portion of " the 
people" can be. Inasmuch, then, as such would be the legal 
effect of their consent, there is no other class of " the people of the 
United States," whose consent to the constitution may, wilh so 
much reason, be presumed ; because no other class have so much 
to gain by consenting to it. And since the consent of all is pre- 
sumed, solely on the ground that the instrument is beneficial to 
them, regardless of their actual assent, there is no ground for 
excluding, or for not presuming, the consent of those, whose 
consent, on account of its beneficial operation upon their interests 
and rights, can be most reasonably and safely presumed. 

But it may, perhaps, be said that it cannot reasonably be pre- 
16* 



186 RULES OF INTERPRETATION. 

sumed that the slaveholders would agree to a constitution, which 
would destroy their right to their slave property. 

One answer to this argument is, that the slaveholders had, at 
the time, no legal or constitutional right to their slaves, under 
their State constitutions, as has already been proved ; and they 
must be presumed to have known that such was the fact, for every 
one is presumed to know the law. 

A second answer is, that it is, in laio, considered reasonable — 
as it is, in fact, one of the highest evidences of reason — for a 
man voluntarily to do justice, against his apparent pecuniary 
interests. 

Is a man considered non compos mentis for restoring stolen 
property to its rightful owner, when he might have retained it 
wiih impunity? Or are all the men, who have voluntarily eman- 
cipated their slaves, presumed to have been fools ? incompetent to 
make reasonable contracts ? or even to have had less reason than 
those who refuse to emancipate ? Yet this is the whole argument 
of those, who say that it cannot be supposed that the slaveholders 
would agree to a free constitution. The argument would have 
been good for nothing, even if the then existing State constitutions 
had authorized slavery. 

There would be just as much reason in saying that it cannot be 
supposed that thieves, robbers, pirates, or criminals of any kind, 
would consent to the establishment of governments that should 
have authority to suppress their business, as there is in saying 
that slaveholders cannot be supposed to cbnsent to a government 
that should have power to suppress slaveholding. If this argument 
were good for anything, we should have to apply it to the state 
constitutions, and construe them, if possible, so as to sanction all 
kinds of crimes which men commit, on the ground that the crimi- 
nals themselves could not be supposed to have consented to any 
government that did not sanction them. 

The truth is, that however great a criminal a man may have 
been, it is considered a very reasonable act for him to agree to do 
justice in future ; and therefore, when communities establish gov- 
ernments for the purpose of maintaining justice and right, the 
assent of all the thieves, robbers, pirates, and slaveholders, is as 
much presumed, as is the assent of the most honest portion of 
communitv. Governments for the maintenance of justice and 
liberty could not be established by the consent of the whole people 
on any other ground. 



SIXTH RULE. 187 

It would be a delectable doctrine, indeed, for courts to act upon, 
in construing a constitution, to presume that it was intended to 
subserve the criminal purposes of a few of the greatest villains in 
community ; and then to force all its honest words to yield to that 
presumption, on the ground that otherwise these villains could not 
be presumed to have agreed to it. Yet this is the doctrine practised 
upon by all who uphold the constitutionality of slavery. They 
know that the whole people, honest and dishonest, slaveholders 
and non-slaveholders alike, must be presumed to have agreed 
either to an honest or a dishonest constitution ; and they think it 
more reasonable to presume that all the honest people agreed to 
turn knaves, than that all the knaves agreed to become honest. 
This presumption is the polar star of all their reasonings in favor 
of the constitutionality of slavery. If this presumption be a true 
guide in the interpretation of all other constitutions, laws, and 
contracts, it is, of course, a correct one for interpreting the consti- 
tution of the United States; otherwise not. 

The doctrine, that an instrument, capable of an honest meaning, 
is to be construed into a dishonest one, merely because one in forty 
of the parties to it has been a dishonest man up to the time of 
making the agreement, (and probably not more than one in forty 
of " the people of the United States" were slaveholders,) would 
not only put it nearly or quite out of the power of dishonest men 
to make contracts with each other that would be held honest in 
the sight of the law, but it would even put it nearly or quite out 
of the power of honest men to make contracts with dishonest ones, 
that would be held honest in the sight of the law. All their con- 
tracts, susceptible of a dishonest meaning, would have to be so 
construed ; and what contract is ever entered into by honest with 
dishonest men, that is not susceptible of such a construction, espe- 
cially if we may go out of the contract, and inquire into the 
habits, character, and business of each of the parties, in order to 
find that one of them is a man who may be suspected of a dis- 
honest motive, and this suspected motive of the one may then be 
attributed to the others as their true motive. 

Such a principle of law would virtually cut off dishonest men 
from all right to make even honest contracts with their fellow- 
men, and would be a far greater calamity to themselves than the 
doctrine that holds all their contracts to be honest, that are suscep- 
tible of an honest construction ; because it is indispensable to a 
dishonest man's success and well-being in life that a large portion 
of his contracts should be held honest and valid. 



188 RULES OF INTERPRETATION. 

Under a principle of law, that presumes everybody dishov£st, 
and construes their constitutions, laws, and contracts accordingly, 
pandemonium would be established at once, in which dishonest 
men would stand no better chance than others ; and would there- 
fore have no more motive than others for sustaining the govern- 
ment. 

In short, it is obvious that government would not, and could not, 
be upheld for an instant, by any portion of society, honest or dis- 
honest, if such a presumption were to be adopted by the courts as 
a general rule for construing eitljer constitutions, laws, or private 
contracts. Yet, let it be repeated, and never forgotten, that this 
presumption is indispensable to such a construction of the constitu- 
tion as makes slavery constitutional. It is the sine qua non to the 
whole fabric of the slaveholding argument. 

There is, then, no legal ground whatever for not presuming the 
consent of slaves, slaveholders, and non-slaveholders to the consti- 
tution of the United States, on the supposition that it prohibits 
slavery. Consequently, there is no legal ground for denying that 
the terms "the people of the "United States," included \hQ whole 
of the then people of the'^United States. And if the whole of the 
people are parlies to it, it must, if possible, be so construed as to 
make it such a contract as each and every individual might rea- 
sonably agree to. In short, it must, if possible, be so construed as 
not to make any of the parties consent to their own enslavement. 
Such a construction is possible, and being possible, is necessarily 
the true construction. 

The constitution of the United States, therefore, would have 
abolished slavery, by making the slaves parties to it, even though 
the state constitutions had previously supported it."^ 



* Story sajs, " Who, then, are the parties lo this contract ? * * * Let the 
instrument answer for itself. The people of the United States are the parties to 
the constitution." — 1 Stnrifs Cornm. on Const., p. 355. 

The supreme court of the United States says, " The government (of the U. S.) 
proceeds directly from the people ; ij 'ordained and estalilished ' in the name of the 
people." — 4 IF/iea^o(!, 403. 

" The government of the Union is, emphatically and truly, a government of the 
people ; and in form and in substance it emanates from them. Its powers are 
granted hy them, and are to be exercised directly on them, and for their benefit." 
— 4 Wkealon, 404, 405. 

" The constitution of the United States was ordained and established, vol hy the 
United States in their sovereign capacities, but emphatically, as the preamble ot 
the constitution declares, by the people of the United States." — ! Whca/on, 324. 

Story, commenting upon the words " We the people of the United Slates," says, 
' We have the sfrougest assurances that this preamble was not adopted as a rner« 



SEVENTH RULE. 189 

SEVENTH RULE. 

The seventh rule of interpretation— is the one that has been 
repeatedly cited from the supreme court of the United States, to 
wit: 

" Where rights are infringed, where fundamental principles are 
overllirown, where the general system of the laws is departed from, 
ihe legislative intention must be expressed with irresistible clear- 
ness, to induce a court of justice to suppose a design to effect such 
objects." 



formulary ; but as a solemn promulgation of a fundamental fact, vital to the char- 
acter and operations of the government. The obvious object was to substitute a 
government of the people for a confederacy of states." — 1 Comm., p. 446. 

Also, " The convention determined that the fabric of American empire ought to 
rest, and should rest, on the solid basis of llie consent of the people. The streams 
of national power ought to flow, and should flow, immediately from the highes 
original fountain of all legitimate authority. * * * ^^^nd the uniform doctrine 
of the highest judicial authority has accordingly been, that it was the act of the 
people, and not the act of the states ; and tliat it bound the latter as subordinate 
to the people." — 1 Story^s Comvi., p. 447. 

Kent says, " The government of the United States was erected by the free voice 
and the joint will of the people of America, for their common defence and general 
welfare." — 1 Kent, 189. 

Chief Justice Jay said, " Every state constitution is a compact, made by and 
between the citizens of the state to govern themselves in a certain manner; and 
the constitution of the United States is likewise a compact, made by the people of 
the United States to govern themselves, as to general objects, in a certain manner." 

— 2 Dallas, 419 ; cited by Story, I Comm., p. 317. 

Mr. Webster says, '' It is tiie people's coustitution, the people's government ; made 
for the ])eople ; made by the people ; and answerable to the people. The people 
of the United States have declared that this constitution shall be the supreme law. 
We must either admit the proposition, or dispute their authority. * * * We 
are all agents of the saine supreme power, the people. The general government 
and the state governments derive their authority from the same source." — Web- 
ster's Speeches, vol. I, p. 410. 

Also, " I hold it to be a popular government, erected by the people ; those who 
administer it, responsible to the people ; and itself capable of being amended and 
modified, just as the people choose it should be. It is as popular, just as truly 
emanating from the people, as the state governments. It is created for one pur- 
pose ; the state governments for another. It has its own powers ; they have theirs." 

— Same, p. 418. 

Also, "This government is the independent offspring of the popular will." — 
Same, 419. 

If the constitution were not established by " the people," there is no information 
given intlie constitution, as to whom it was established by. We must, of necessity, 
therefore, accept its own declaration, that it was established by the people. And 
if we accept its declaration that it was established by " the people," we must also 
accept its virtual declaration that it was established by the whole people, for it 
gives no information of its being established by one portion of the people, any more 
than by another. No separation can therefore be made between different portions 
pf the people. 



190 RULES OF INTERPRETATION. 

The pith of- tliis rule is, that any unjust intenlion must be 
'■expressed with irresistible clearness" to induce a couit to give a 
law an unjust meaning. 

The word ^'■expressed" is a very important one, in this rule. It 
is necessary, therefore, for the benefit of the unprofessional reader, 
to define it. 

In law, a thing is said to be " expressed," only when it is littered-, 
or vjritten out, embodied in disti^ict loords, in contradistinction to 
its being inferred, implied, or gathered from evidence exterior to 
the words of the law. 

The amount of the rule, then, is, that the court will neA-er, 
through inference, nor iviplication, attribute an unjust intention 
to a law ; nor seek for such an intention in any evidence exterior 
to the words of the law. They will attribute such an intention to 
the law, only when such intention is loritten out in actual terms ; 
and in terms, too, of "irresistible clearness." 

The rule, it will be observed, does not forbid a resort to infer- 
ence, implication, or exterior evidence, to help out the supposed 
meaning of, or to solve any ambiguities in, a law that is consistent 
with justice. It only forbids a resort to such means to help out 
the supposed meaning of, or to solve any ambiguities in, an unjust 
law. It virtually says that if an ambiguous law can possibly be 
interpreted favorably to justice, it shall be thus interpreted. But 
if it cannot be thus interpreted, it shall be suffered to remain inop- 
erative — void for its ambiguity — rather than the court will help 
out its supposed meaning by inference, implication, or exterior 
evidence. 

Is this rule a sound one ? It is ; and for the following reasons : 

Certainty is one of the vital principles of law. Properly speak- 
ing, nothing is law that is uncertain. A written law is only what 
is written. It is not certain, any further than it is written. If, 
then, we go out of the written law, we necessarily go into the 
region of uncertainty. It must, also, generally be presumed, that 
the legislature intend nothing more than they have chosen to com- 
municate. It is therefore straining matters, and going beyond 
strict legal prmciples, to go out of the words of a law, to find its 
meaning, in any case whatever, whether for a good purpose, or a 
bad one. 

It will be asked, then, " Why resort to inference, implication, 
and exterior evidence, to solve the ambiguities in a just law ? " 
The answer is this : Such is the variety of senses in which Ian- 



J 



SEVENTH RULE. 191 

guage is used by different persons, and such the want of skill in 
many of those who use it, that laws are very frequently left in 
some ambiguity. Men, nevertheless, act upon them, assuming to 
understand them. Their rights thus become involved in the 
efficacy of the law, and will be sacrificed unless the law be carried 
into effect. To save these rights, and for no other purpose, the 
courts v/ill venture to seek the meaning of the law in exterior evi- 
dence, when the intent of the law is good, and the apparent ambi- 
guity not great. Strictly speaking, however, even this proceeding 
is illegal. Nothing but the necessity of saving men's rights, 
affords any justification for it. But where a law is ambiguous and 
■unjust, there is no such necessity for going out of its words to 
settle its probable meaning, because men's rights will not be saved, 
but only sacrificed, by having its uncertainty settled, and the law 
executed. It is, therefore, better that the law should perish, be 
suffered to remain inoperative for its uncertainty, than that its 
uncertainty should be removed, (or, rather, attempted to be 
removed, for it cannot be removed absolutely, by exterior evi- 
dence,) and the law carried into effect for the destruction of men's 
rights. 

Assuming, then, the rule of the court to be sound, are the rules 
laid down in the " Unconstitutionality of Slavery,"* that have 
since been somewhat questioned,! embraced in it? Those rules 
are as follows : 

1. " One of them is, that where words are susceptible of two 
meanings, one consistent, and the other inconsistent, with justice 
and natural right, that meaning, and only that meaning, Avhich is 
consistent with right, shall be attributed to thei7i, unless other parts 
of the instrument overrule that interpretation." 

This rule is clearly embraced in the rule of the court ; for the 
rule of the court requires the unjust meaning to be " expressed 
with irresistible clearness," before it can be adopted ; and an un- 
just meaning certainly cannot be said to be " expressed with irre- 
sistible clearness," when it is expressed only by words, which, 
consistently with the laws of language, and the rest of the instru- 
ment, are susceptible of an entirely different — that is, a perfectly 
innocent — meaning. 

2. " Another rule, (if, indeed, it be not the same,) is, that no 
language except that which is peremptory, and no implication, 

*"Page 62, Second Edition. t By Wendell Phillips. 



192 RULES OF INTERPRETATION. 

except one that is inevitable, shall be held to authorize or sanction 
anything contrary to natural right." 

This rule is also clearly embraced in the rule of the court ; for 
the rule of the court requires that the unjust intention be " ex- 
pressed,''^ that is, uttered, loritten out in terins, as distinguished 
from being inferred, or implied. The requirement, also, that it be 
" expressed xoith irresistible clearness,'''' is equivalent to the require- 
ment that the language be " peremptory." 

3. " Another rule is, that no extraneous or historical evidence 
shall be admitted to fix upon a statute an unjust or immoral mean- 
ing, when the words themselves of the act are susceptible of an 
innocent one." 

This rule is also clearly embraced in the rule of the court; for 
the rule of the court requires, not only that the unjust intention be 
" expressed,'''' wxiiiQW out, embodied in words, as distinct from being 
inferred, implied, or sought in exterior historical evidence, hut also 
that it be embodied in words of " irresistible clearness." Now, 
words that express their intention with " irresistible clearness,'''' can 
of course leave no necessity for going out of the words, to " extra- 
neous or historical evidence,'''' to find their intention. 

But it is said that these rules are in conflict with the general 
rule, that where a law is ambiguous, the probable intent of the 
legislature may be ascertained by extraneous testimony. 

It is not an tmiversal rule, as has already been shown, that even 
where a law, as a whole, is ambiguous, the intentions of the legis- 
lature may be sought in exterior evidence. It is only where a jnst 
law is ambiguous, that we may go out of its words to find its 
probable intent. We may never do it to find the probable intent 
of an unjust one that is ambiguous ; for it is better that an unjust 
law should perish for uncertainty, than that its uncertainty should 
be solved by exterior evidence, and the law then be executed for 
the destruction of men's rights. 

Where only single words or phrases in a law are ambiguous, as 
is the case with the constitution of the United States, the rule is 
somewhat different from what it is where the law, as a whole, is 
ambiguous. In the case of single words and phrases that are 
ambiguous, all the rules applicable to ambiguous words and 
phrases must be exhausted in vain, before resort can be had to 
evidence exterior to the law, or the words and phrases be set down 
as sanctioning injustice. For example ; to settle the meaning of 
an ambiguous word or phrase, we must, before going out of the 



SEVENTH RULE. 193 

Mistrument, refer to all the other parts of the instrument itself, to 
its preamble, its general spirit and object, its subject matter, and, 
in the case of the constitution, to " the general system of the 
laws " authorized and established by it. And the ambiguous 
word or phrase must be construed in conformity with these, if 
possible, especially when these are favorable to justice. And it is 
only when all these sources of light have failed to suggest a just, 
reasonable, and consistent meaning, that we can go out of the 
instrument to find the probable meaning. 

If, when a single word or phrase were ambiguous, we could at 
ofice go out of the instrument, [before going to other parts of it,) 
to find the probable intent of that single word or phrase, and could 
determine its intent, independently of its relation to the rest of the 
instrument, we should be liable to give it a meaning irrelevant to 
the rest of the i;istrument, and thus involve the whole instrument 
in absurdity, contradiction, and incongruity. 

There are only four or five single words and phrases in the 
constitution, that are claimed to be ambiguous in regard to slavery. 
All the other parts of the instrument, its preamble, its prevailing 
spirit and principles, its subject matter, " the general system of the 
laws " authorized by it, all repel the idea of its sanctioning 
slavery. If, then, the ambiguous words and phrases be construed 
with reference to the rest of the instrument, there is no occasion 
to go out of the instrument to find their meaning. 

But, in point of fact, the words of a law never are amhiguous, 
legally speaking, where the alternative is only between a meaning 
that is consistent, and one that is inconsistent, with natural right ; 
for the rule that requires the right to be preferred to the wrong, is 
imperative and universal in all such cases; thus making the legal 
■meaning of the word precisely as certain, as though it could, in no 
case, have a?iy other meaning. It thus prevents the ambiguity, 
which, hut for the rule, might have existed. 

This rule, that a just, in preference to, an unjust, meaning must 
be given to a word, wherever it is possible, consistently with the 
rest of the instrument, obviously takes precedence of the rule that 
permits a resort to exterior evidence ; and for the following rea- 
sons : — 

1. Otherwise, the rule in favor of the just meaning could sel- 
dom or never be applied at all, because when we have gone out 
of the words of the law, we have gone away from those things to 
which the rule applies. The exterior evidence which we should 
17 



194 RULES OF INTERPRETATION. 

find, would not necessarily furnish any opportunity for the appli- 
cation of the rule. This rule, therefore, of preferring the just to 
the unjust meaning of a word, could hardly have had an existence, 
except upon the supposition that it was to be applied to the words 
given in the law itself. And if applied to the words given in the 
law itself, it of course settles the meaning, and there is then no 
longer any occasion to go out of the law to find its meaning. 

2. Nothing would be gained by going out of a law to find 
evidence of the meaning of one of its words, when a good meaning 
could be found in the law itself. Nothing better than a good 
meaning could be expected to be found by going out of the law. 
As nothing could be gai)ied, then, by going out of the law, the 
only object of going out of it would be to find an tmjiist meaning; 
but that, surely, is no sufficient reason for going out of it. To go 
out of a law to find an unjust meaning for its words, when a.J7ist 
meaning could be found in the law itself, would be acting on the 
principle of subverting all justice, if possible. 

3. It would hardly be possible to have written laws, unless the 
legal meaning of a word were considered certain, instead of am- 
biguous, in such cases as this ; because there is hardly any word 
used in writing laws, which has not more than one meaning, and 
which might not therefore be held ambiguous, if we were ever to 
lose sight of the fact, or abandon the presumption, that justice is 
the design of the law. To depart from this principle would, be 
introducing universal ambiguity, and opening the door to universal 
injustice. 

4. Certainty and right are the two most vital principles of the 
law. Yet certainty is always sacrificed by going out of the words 
of the law ; and right is always liable to be sacrificed, if we go 
out of the words, with liberty to choose a bad meaning, when a 
good meaning can be found in the words themselves ; while both 
certainty and right are secured by adhering uniformly to the rule 
of preferring the just to the unjust meaning of a word, wherever 
the two come in collision. Need anything more be said to prove 
the soundness of the rule? 

The words of a law, then, are never avibigiious, legally speak- 
ing, when the only alternative is between a just and an unjust 
meaning. They are ambiguous only when both meanings are 
consistent with right, or both inconsistent with it. 

In the first of these two cases, viz., where both meanings are 
consistent with right, it is allowable, for the sake of saving the 



SEVENTH RULE. 195 

rights dependent on the efficacy of the law, to go to extraneous 
history to settle the probable intention of the legislature. But in 
the latter case, viz., where both meanings are inconsistent with 
right, it is not allowable to go out of the words of the law itself, 
to ascertain the legislative intention. The law must rather be 
suffered to remain inoperative for its uncertainty. 

The rule, quoted from the supreme court, comes fully up to 
these principles ; for that rule requires, in order that an unjust law 
may be carried into effect, that the unjust intent be " expressed," 
as distinguished from being inferred, implied, or sought in exterior 
evidence. It must also be " expressed with irresistible clearness." 
If it be left in an uncertainty, the law will be construed in favor 
of the right, if possible ; if not, it will be suffered to perish for its 
ambiguity. 

Apply, then, this rule of the court, in all its parts, to the word 
" free," and the matter will stand thus. 

1. A sense correlative with aliens, makes the constitution con- 
sistent with natural right. A sense correlative with slaves, makes 
the constitution inconsistent with natural right. The choice must 
therefore be made of the former sense. 

2. A sense correlative with aliens, is consistent with " the gen- 
eral system of the laws " established by the constitution. A sense 
correlative with slavery, is inconsistent with that system. The 
former sense then must be adopted. 

3. If a sense correlative with aliens be adopted, the constitution 
itself designates the individuals to whom the word " free," and the 
words " all other persons " apply. If a sense correlative with 
slaves be adopted, the constitution itself has not designated the 
individuals to whom either of these descriptions apply, and we 
should have to go out of the constitution and laws of the United 
States to find them. This settles the choice in favor of the former 
sense. 

4. Even if it tvere admitted that the word ^^free" was used as 
the correlative of slaves, still, biasmuch as the constitution itself 
has not designated the individuals who may, and who may not, he 
held as slaves, and as tve cannot go out of the instrument to settle 
any ambiguity in favor of injustice, the provision must remain 
inoperative for its iincertainty ; and all persons must be presumed 
free, simply because the cofistitution itself has not fold us icho may 
be slaves. 

Apply the rule further to the words " importation of persons," 



196 KULES OF INTERPRETATION. 

and " service and labor," and those words wholly fail to recogniza 
slavery. 

Apply tne rule only to the word " free," and slavery is uncon- 
stitutional ; for the words " importation of persons," and " service 
and labor," can have no claims to be considered recognitions or 
sanctions of slavery, unless such a signification be first given to 
the word " free." 

EIGHTH RULE. 

An eighth rule of interpretation is, that where the prevailing 
principles and provisions of a law are favorable to justice, and 
general in their nature and terms, no unnecessary exception to 
them, or to their operation, is to be allowed. 

It is a dictate of law, as of common sense — or rather of law, 
because of common sense — that an exception to a rule cannot be 
established, unless it be stated with at least as much distinctness 
and certainty as the rule itself, to which it is an exception ; because 
otherwise the authority of the rule will be more clear and certain, 
and consequently more imperative, than that of the exception, and 
will therefore outweigh and overbear it. This principle may 
justly be considered a strictly mathematical one. It is founded 
simply on the necessary preponderance of a greater quantity over 
a less. On this principle, an exception to a general lato cannot 
be established, unless it be expressed with at least as much dis- 
tinctness as the law itself. 

In conformity with this principle, it is the ordinary practice, in 
the enactment of laws, to state the exceptions with the greatest 
distinctness. They are usually stated in a separate sentence from 
the rest of the law, and in the form of a proviso, or exception, 
commencing with the words " Provided, nevertheless," " Excepting, 
however," or words of that kind. And the language of the proviso 
is generally even more emphatic than that of the law, as it, in 
reality, ought to be, to preponderate against it. 

This practice of stating exceptions has been further justified, 
and apparently induced, by that knowledge of human nature 
which forbids us to understand a man as contradicting, in one 
sentence what he has said in another, unless his language be 
incapable of any other meaning. For the same reason, a law, 
(which is but the expression of men's intentions,) should not be 
held to contradict, in one sentence, what it has said in another, 
except the terms be perfectly clear and positive. 



EIGHTH RULE. 197 

The practice of stating exceptions in this formal and emphatic 
manner, shows also that legislators have usually, perhaps uncon- 
sciously, recognized, and virtually admitted, the soundness of 
the rule of interpretation, that requires an exception to be stated 
with at least as much clearness as' the law to which it is an ex- 
ception. 

This practice of stating exceptions in a clear and formal manner, 
is common even where no violation of justice is involved in the 
exception ; and where an exception therefore involves less viola- 
lion of reason and probability. 

This rule of interpretation, in regard to exceptions, corresponds 
with what is common and habitual, if not universal, in common 
life, and in ordinary conversation. If, for instance, a man make 
an exception to a general remark, he is naturally careful to express 
the exception with peculiar distinctness ; thus tacitly recognizing 
the right of the other party not to notice the exception, and the 
probability tliat he will not notice it, unless it be stated with per- 
fect distinctness. 

Finally. Although an exception is not, in law, a contradiction, 
it nevertheless partakes so strongly of the nature of a contradiction 
— especially where there is no legitimate or rightful reason for 
it — that it is plainly absurd to admit such an exception, except 
upon substantially the same terms that v\-e admit a contradiction, 
viz., irresistible clearness of expression. 

The question now is, whether there is, in the constitution, any 
compliance with these principles, in making exceptions in favor of 
slavery ? Manifestly there is none. There is not even an ap- 
proach to such a compliance. There are no words of exception ; 
DO words of proviso ; no words necessarily implying the existence 
or sanction of anything in conflict with the general principles of 
the instrument. 

Yet the argument for slavery, (I mean that founded on the 
representative clause,) makes Hoo exceptions — not one merely, 
but tivo — and both of the most flagitious and odious character — 
without the constitution's having used any words of proviso or 
exception ; without its having devoted any separate sentence to 
the exception ; and without its having used any words which, even 
if used in a separate sentence, and also preceded by a " Provided, 
nevertheless,'" would have necessarily implied any such exceptions 
as are claimed. The exceptions are claimed as having been 
established merely incidentally and casually, in describing the 

17* 



198 RULES OF INTERPRETATION. 

manner of counting the people for purposes of representation and 
taxation; when, what is worse, the words used, if not the most 
common and proper that could have been used, are certainly both 
common and proper for describing the people, where no excep- 
tion to " the general system of the laws" established by the con- 
stitution is intended. 

It is by this process, and this alone, that the argument for slavery 
makes two exceptions to the constitution ; and both, as has already 
been said, of the most flagitious and odious character. 

One of these exceptions is an exception of principle, substituting 
injustice and slavery, for " justice and liberty." 

The other is an exception of persons ; excepting a part of " the 
people of the United States" from the rights and benefits, which 
the instrument professes to secure to the whole ; and exposing 
them to wrongs, from which the people generally are exempt. 

An exception of principle would be less odious, if the injustice 
were of a kind that bore equally on all, or applied equally to all. 
But these two exceptions involve not only injustice in principle, 
but partiality in its operation. This double exception is doubly 
odious, and doubly inadmissible. 

Another insuperable objection to the allowance of these excep- 
tions, is, that they are indefinite — especially the latter one. The 
persons who may be made slaves are not designated. The per- 
sons allowed to be made slaves being left in uncertainty, the 
exception must fail for uncertainty, if for no other reason. We 
cannot, for the reasons given under the preceding rule, go out of 
the instrument to find the persons, because it is better that the 
exception should fail for its uncertainty, than that resort should be 
had to exterior evidence for the purpose of subjecting men to 
slavery . 

NINTH RULE. 

A ninth rule of interpretation is, to be guided, in doubtful cases, 
by the preamble. 

The authority of the preamble, as a guide to the meaning of an 
instrument, where the language is ambiguous, is established. _ In 
fact, the whole object of the preamble is to indicate the objects had 
in view in the enacting clauses ; and of necessity those objects will 
indicate the construction to be given to the words used in those 
clauses. Any other supposition would either make the preamble 
worthless, or, worse than that, deceitful. 



TENTH RULE. 199 

If we are guidod by the preamble in fixing the meaning of those 
clauses that have been claimed for slavery, it is plain that no sanc- 
tion or recognition of slavery will be found in them ; for the pre- 
amble declares the objects of the constitution to be, among other 
things, "justice" and " liberty." * 

TENTH RULE, 

A tenth rule of interpretation is, that one part of an instrumeni 
must not be allowed to contradict another, unless the language be 
30 explicit as to make the contradiction inevitable. 

* Story says, "The imporlai?ce of examining the prxjarable, for the purpose of 
■sxpounding the language of a statute, has heen long felt, and universally conceded 
in all juridical discussions. It is an admitted maxim in the ordinary course of the 
administration of justice, that the preamble of a statute is a k€y to ojieTi the mind 
of the makers, as to the mischiefs which are to be remedied, and the objects which 
are to be accomplislied by the provisions of tlte statute. We find it laid down in 
some of Gur earliest authorities in the common law, and civilians are accustomed 
to a similar expression, cesenvtr leg-i^ prcemio, cessai et ipsa lex. (The )3reamble 
of the law ceasiRg, the law itself also ceases.) Probably it has a foundation in the 
exposition of every code of written law, from the universal principle of interpreta- 
tion, that the Vv'ill and intention of the legislature is to be regarded and followed. 
It is properly resorted to where doubts or ambiguities arise upon the words of tlie 
enacting part ; for if they are clear and unambiguous, there seems little room for 
interpretation, except in cases leading to an absurdity, or to a direct overtltrow of 
the intention expr-essed in the preamble. 

"There does not seem any reason why, in a fundamental law or constitution of 
government, an equal attention should not be given to the intention of the framers, 
as expressed in the preamble. And accordingly we find that it has been constantly 
referred to by statesmen and jurists toaid theHi in the exposition of its provisions. " 

— 1 Story's Comm. on Const., p. 443-4. 

Story also says, " Its true office is to expound the nature, and extent, and applica- 
tion of the powers actually conferred by the constitutioH, and not substantively to 
create them." — Sdnifi, 445. 

" Though the preamble cannot control the enacting part of a statute which is 
expressed in clear and unambiguous terms, yet, if any douljt arise on tlie words of 
the enacting part, the preamble maybe resorted to, to explain it." — 7 Bacon's 
Abr., i35,noCe. 4 Term Rep., 793. 13 Vcscy, 36. 15 Johnson, N. Y. Rep., 116. 

" A statute made pro bono publico {for the public good) shall be ■construed m 
such manner that it may as far as possible attain the end proposed." — 7 Bacon's 
Abr., 461. 

The constitution of the United States avo-ws itself to be established for the public 
good — that is, for the good of "the people of the United Stales" — to establish 
justice and secure the blessings of liberty to themselves and their posterity. It 
must of course ■" lie construed in such manner that it may, as far as possible, attain 
that end." 

Story says, " Was it not framed for the good of the people, and by the people ? " 

— 1 Stori/a Comm., 394. 

Chief Justice .Tay dwells at length upon the authority of the preamble, as a guide 
for the interpretation of the constitution. — 2 Dallas, 419. Also Justice Story, ia 
his Commenlaries on the Constitution, vol. I, book 3, ck. 6. 



200 RULES OF INTERPRETATION. 

Now the constitution would be full of contradictions, if it toler- 
ated slavery, unless it be shown that the constitution itself has 
established an exception to all its general provisions, limiting their 
operation and benefits to persons not slaves. Such an exception 
or limitation would not, legally speaking, be a contradiction. But 
I take it for granted that it has already been shown that no such 
exception can be made out from its words. If no such exception 
be made out from its words, such a construction must, if possible, 
be given to each clause of the instrument, as will not amount to a 
contradiction of any other clause. There is no difficulty in mak- 
ing such a construction ; but when made it will exclude slavery. 

ELEVENTH RULE. 

An eleventh rule is one laid down by the supreme court of the 
United States, as follows : 

"An act o^ congress" (and the rule is equally applicable to the 
constitution) " ought never to be construed to violate the law of 
nations, if any o\h.er possible construction remains."^ 

This rule is specially applicable to the clause relative to "the 
importation of persons." If that clause were construed to sanction 
the kidnapping of the people of foreign nations, and their importa- 
tion into this country as slaves, it would be a flagrant violation of 
that law. 

TWELFTH RULE. 

A twelfth rule, universally applicable to questions both of fad 
and law, and sufficient, of itself alone, to decide, against slavery,: 
every possible question that can be raised as to the meaning of the 
constitution, is this, " that all reasonable doubts must he decided in 
faoor of liberty." t 

All the foregoing rules, it will be observed, are little other than 
varied and partial expressions of the rule so accurately, tersely, 
comprehensively, and forcibly expressed by the supreme court of 
the United States, viz.: 



*2 Cranck, 64. 

•f The S\ipreme Court of Mississippi say, referring to the claim of freedom, set 
up before it, " Is it not an unquestioned rule that, in matters of doubt, courts 
must lean in favorem. vitce et libertotis? " (in favor of life and liberty.) — Harvey, 
vs. Decker, Walker's Mississippi Reports, 36. 

I cite this auttiority from JVIr. Ghas43's argument in the Van Zaiidt case. 



THIRTEENTH RTTLE. 201 

"Where rights are infringed, where fundamental principles are 
overthrown, where the general system of the laws is departed from, 
the legislative intention must be expressed with irresistible clear- 
ness, to induce a court of justice to suppose a design to effect such 
objects." 

THIRTEENTH RULE. 

A thirteenth rule, and one of great importance, is, that tnstru' 
ments must be so construed as to give no shelter or effect to fraud. 

This rule is especially applicable for deciding what meaning we 
are to give to the word free in the constitution ; for if a sense cor- 
relative with slavery be given to that word, it will be clearly the 
result of fraud. 

We have abundant evidence that this fraud was intended by some 
o{ i\ie framers of the constitution. They knew that an instrument 
legalizing slavery could not gain the assent of the north. They 
therefore agreed upon an instrument honest in its terms, with the 
intent of misinterpreting it after it should be adopted. 

The fraud of the framers, however, does not, of itself, implicate 
the people. But when any portion of the people adopt this fraud 
in practice, they become implicated in it, equally with its authors. 
And any one who claims that an ambiguous word shall bear a sense 
inappropriate to the subject matter of the instrument, contrary to 
the technical and common meaning of the word, inconsistent with 
any intentions that all the parties could reasonably be presumed to 
agree to, inconsistent with natural right, inconsistent with the pre- 
amble, and the declared purpose of the instrument, inconsistent 
with "the general system of the laws" established by the instru- 
ment ; any one who claims such an interpretation, becomes a partic- 
ipa'or in the fraud. It is as much fraudulent, in latv, for the people 
of the present day to claim such a construction of the word free, as 
it was for those who lived at the time the instrument was adopted. 
Vattel has laid down two very correct principles to be observed 
as preventives of fraud. They are these : 

1. That it is not permitted to interpret what has no need of 
interpretation. 

2. That if a parly have not spoken plainly, Avhen he ought to 
have done so, that which he has szifficiently declared, shall be 
taken for true against him. 

Vattel's remarks in support of, and in connection with, these 
principles, are so forcible and appropriate that they will be given 



202 RULES OF INTEHPRETATION. 

somewhat at length. If he had had in his mind this very fraud 
which the slaveholders and their accomplices intended to perpe- 
trate by means of the word free in the constitution, he could 
hardly have said anything better fitting the case. 

He says, " That fraud seeks to take advantage even of the 
imperfection of language ; that men designedly throw obscurity 
and ambiguity into their treaties, to obtain a pretence for eluding 
them upon occasion. It is then necessary to establish rules 
founded on reason, and authorized by the law of nature, capable 
of frustrating the attempts of a contracting power void of good 
faith. Lei us begin with those that tend particularly to this end; 
with those maxinis of justice and equity destined to repress fraud 
and prevent the effect of its artifices. 

" The first general maxim of interpretation is, that it is not per- 
mitted to interpret lohat has no 7ieed of interpretation.^ When 
an act is conceived in clear and precise terms, when the sense is 
manifest and leads to nothing absurd, there can be no reason to 
refuse the sense which this treaty naturally presents. To go else-. 
where in search of conjectures in order to restrain or extinguish 
it, is to endeavor to elude it. If this dangerous method be once 
admitted, there will be no act which it will not render useless. 
Let the brightest light shine on all the parts of the piece, let it be 
expressed in terms the most clear and determinate ; all this shall 
be of no use, if it be allowed to search for foreign reasons in order 
to maintain what cannot be found in the sense it naturally presents. 

" The cavillers who dispute the sense of a clear and determinate 
article, are accustomed to draw their vain subterfuges from the 
pretended intention, and views of the author of that article. It 
would often be v^ry dangerous to enter with them into thj discus- 
sion of these supposed views, that are not pointed out in the piece 
itself. This rule is more proper to repel them, and which cuts off 
all chicanery ; if he loho can and ought to have explained himself 
clearly and plainly, has not done it, it is the roorse for him ; he 
cannot be allowed to introduce subsequent restrictions which he has 



♦This rule is fairly applicable to the word yVee. The sense correlative with 
aliens is a sense appropriate to the subject matter of the instrument ; it accurately 
and properly describes a class of persons, which the constitution presumes would 
exist under it ; it was, at the time, the received and technical sense of the word in 
all instruments of a similar character, and therefore its presumptive sense in the 
constitution ; it is consistent with intentions reasonably attributable to all the par- 
ties to the constitution ; it is consistent with natural right, with the preamble, the 
declared purpose of the constitution, and with the general system of the laws 
estaiilished by the constitution. Its le^al meaning', in the constitution, was there- 
fore plain, manifest, palpable, and, at the time of its adoption, had no need of inter- 
pretation. It needs interpretation now, only to expose the fraudulent inierpretation 
of the past; and because, in pursuance of that fraudulent interpretation, usage has 
Sow somewhat changed tlie received meaning of the word. 



THIRTEENTH RULE. 203 

not expressed. This is the maxim of the Roman law; Pactionem 
obsc7iram Us nocere, in quortim fuit potestate legem apertius cortr 
scribere. (The harm of an obscure compact shall fall upon those 
in whose power it was to write the rule plainly.) The equity of 
this rule is extremely visible, and its necessity is not less evident. 
There can be no secure conventions, no firm and solid concession, 
if these may be rendered vain by subsequent limitations that ought 
to have been mentioned in the piece, if they were included in the 
intentions of the conlractinrr powers." — Vattel, b. 2, ch. 17, sees. 
262, 263, 264. 

" On every occasion when a person has, and ongJit to have shotcn 
his intention, we take for true agai?ist him what he has sufficient- 
ly declared. This is an incontestible principle applied to treaties ; 
for if they are not a vain play of words, the contracting parties 
ought to express themselves with truth, and according to their real 
intentions. If the intention sufficiently declared, was not taken for 
the true intention of him who speaks and binds himself, it would 
be of no use to contract and form treaties." — Same, sec. 266. 

" Is it necessary, in an enlightened age, to say that mental res- 
ervations cannot be admitted in treaties? This is manifest, since 
by nature even of the treaty, the parlies ought to declare the man- 
ner in which they would be reciprocally understood. There is 
scarcely a person at present, who would not be ashamed of build- 
ing upon a mental reservation. What can be the use of such an 
artifice, if it was not to lull to sleep some other person under the 
vain appearance of a contract ? It is, then, a real piece of knavery." 
— Same, sec. 275. 

" There is not perhaps any language that has not also words 
which signify two or many different things, or phrases susceptible 
of more than one sense. Thence arise mistakes in discourse. 
The contracting powers ojight carefully to avoid them. To 
employ them with design, in order to elude engagements, is a 
real perfidy, since the failh of treaties obliges the contracting par- 
ties to express their intentions clearly. But if the equivocal term 
has found admission into a public treaty, the interpretation is to 
makf the uncertainty produced by it disappear. 

" This is the rule that ought to direct the interpretation in this 
case. We ought always to give to expressions the sense most suit- 
able to the subject, or to the matter to ichich they relate. For we 
endeavor by a true interpretation, to discover the thoughts of those 
who speak, or of the contracting powers in a treaty. Now it 
ought to be presumed that he who has employed a word capable 
of many different significations, has taken it in that which agrees 
with the subject. In proportion as he employs himself on the 
matter in question, the terms proper to express his thoughts pre- 
sent themselves to his mind ; this equivocal word could then only 
offer itself in the sense proper to express the thought of him who 
makes use of it, that is, in the sense agreeable to the subject. It 



204 RULES OF INTERPRETATION. 

would be to no purpose to object, that uie sometimes have recourse to 
equivocal expressions, with a view of exhibiting sometldng very 
different from lohat one has truly in the mind, and that then the 
sense lohich agrees with the subject is not that which ansivers to the 
intention of the man who speaks. We have already observed, that 
whenever a man can and ouglit to have made known his intention, 
we may take for true against him what he has sufficiently declared. 
And as good faith ought to preside in conventions, they are always 
interpreted on the supposition that it actually did preside in them.'" 
— Same, sec, 279, SO. 

" The reason of the lata, or the treaty, that is, the motive which 
led to the making of it, and the view there proposed, is one of the 
most certain means of establishing the true sense, and great atten- 
tion ought to be paid to it whenever it is required to explain an 
obscure, equivocal and undetermined point, either of a kivv, or of a 
treaty, or to make an application of them to a particular case. As 
soon as we certainly knoiv the reason tohich alone has determined 
the will of him who speaks, we ought to interpret his words, and 
to apply them in a mamier suitable to that reason alone. Other- 
wise he will be made to speak and act contrary to his intention, 
a nil in a manner opposite to his views. 

But we ought to be very certain that we know the true and only 
reason of the law, the promise, or the treaty. It is not here per- 
mitted to deliver ourselves up to vague and uncertain conjectures, 
and to suppose reason and views where there are none certainly 
known. If the piece in question is obscure in itself; if in order 
to know the sense, there are no other means left but to search for 
the reason of the act, and the views of the author; we must then 
have recourse to conjecture, and in the want of certainty, receive 
for true, what is most probable. But it is a dangerous abuse to go, 
without necessity, in search of reasons and uncertain views, in order 
to turn, restrain, or destroy, the sense of a piece that is clear 
enough in itself, and that presents nothing absurd ; this is to offend 
against this inconlestible maxim, that it is not permitted to inter- 
pret what has no need of interpretation. Much less is it permitted, 
when the author of a piece has himself there made known his rea- 
sons and motives, to attribute to him. some secret reason, as tJie foun- 
dation to interpret the piece contrary to the natural sense of the 
terms. Though he had really the vieiv attributed to him, if he has 
concealed it, and made knoion others, the interpretation can only 
be founded upon these, and not upon the vien:s wldch the author 
has not expressed ; we take for true against him what he has suffi- 
ciently expressed." — Same, sec. 2S7. 

FOURTEENTH RULE. 

In addition to the foregoing particular rules of interpretation, 
this general and sweeping one may be given, to wit, that we are 



FIRST RULE CITED FOR SLAVERY. 205 

never unnecessarily to i??ipute to an instrument any ititention what- 
ever which it toould be unnatural for either reasonable or honest 
men to entertain. Such intention can be admitted only when the 
language will admit of no other construction. 

Law is "a rule of conduct." The very idea of law, therefore, 
necessarily implies the ideas of reason and right. Consequently, 
every instrument, and every man, or body of men, that profess to 
establish a law, impliedly assert that the law they would establish 
is reasonable and right. The law, therefore, must, if possible, be 
construed consistently with that implied assertion. 

RULES CITED FOR SLAVERY. 

The rules already given (unless perhaps the fourth) take pre- 
cedence of all the rules that can be offered on the side of slavery ; 
and, taking that precedence, they decide the question without ref- 
erence to any others. 

It may, however, be but justice to the advocates of slavery, to 
state the rules relied on by them. The most important are the 
following : 

FIRST RULE CITED FOR SLAVERY. 

One rule is, that the most common and obvious sense of a word 
is to be preferred. 

This rule, so far as it will apply to the word free in the consti- 
tution, is little or nothing more than a repetition of the rule before 
given, (under rule fourth,) in favor of the technical meaning of 
words. It avails nothing for slavery ; and for the following 
reasons : 

1. In determining, in a particular case, what is " the most 
common and obvious meaning" of a word, reference must be had 
not alone to the sense in which the word is most frequently used 
in the community, without regard to the context, or the subject to 
which it is applied ; but only to its most common meaning, when 
used in a similar connection, for similar purposes, and with refer- 
ence to the same or similar subjects. For example. In a law 
relative to vessels navigating Massachusetts Bay, or Chesapeake 
Bay, we must not understand the word bay in the same sense as 
when we speak of a bay horse, a bay tree, or of a man standing 
at bay. Nor in a law regulating the rate of discount, or the days 
of grace, on checks, notes, drafts and orders, must we understand 
18 



206 RULES OF INTERPRETATIOX. 

the word check in the same sense as when we speak of a man's 
being checked in his career ; nor the word note in the same sense 
as when we speak of notes in music, or of a man of note ; nor the 
word draft in the same sense as when we speak of a ship's draft 
of water, or of a sketch, plan, or drawing on paper ; nor the word 
order in the same sense as when we speak of a military order, or 
orders in architecture, or of different orders of men, as the order 
of dukes, the order of knights, the order of monks, the order of 
nuns, &c., &c. 

All can see that the meanings of the same words are so different 
when applied to different subjects, and used in different connections, 
that written laws would be nothing but jargon, and this rule utterly 
ridiculous, unless, in determining the most common and obvious 
meaning of a word, in any particular case, reference be had to its 
most common use in similar connections, and when applied to 
similar subjects, and with similar objects in view. 

To ascertain, then, the most "common and obvious meaning" 
of the word "yrei?," in such a connection as that in which it stands 
in the constitution, we must first give it a meaning that appropri- 
ately describes a class, which the constitution certainly presumes 
will exist under the constitution. Secondly, a meaning which the 
whole " people of the United States," (slaves and all,) who are 
parties to the constitution, may reasonably be presumed to have 
voluntarily agreed that it should have. Thirdly, we must give it 
a meaning that will make the clause in which it stands consistent 
with the intentions which " the people," in the preamble, declare 
they have in view in ordaining the constitution, viz., " to establish 
justice," and " secure the blessings of liberty to themselves, (the 
whole people of the United States,) and their posterity." Fourth 
ly, we must give it a meaning harmonizing with, instead of con 
tradicting, or creating an exception to, all the general principles 
and provisions of the instrument. Fifthly, such a meaning must 
be given to it as will make the words, " all other persons," describe 
p>ersons who are proper subjects of " representation " and of taxation 
as persons. No one can deny that, at the time the constitution was 
adopted, the most " common and obvious meaning" of the word 
" free," when used by the whole people of a state or nation, in polit- 
ical instruments of a similar character to the constittition, and in 
connection ivith such designs, principles, and provisions as are 
expressed and contained in the constitutio7i, was such as has been 
claimed for it in this argument, viz., a meaning describing citizens, 



FIRST RULE CITED FOR SLAVERY. 207 

or persons possessed of some political franchise, as distinguished 
from aliens, or persons not possessed of the same franchise. No- 
body can deny this. On the contrary, everybody who argnes that 
it describes free persons, as distinguished from slax'es, admits, and 
is obliged to admit, that this meaning is either in conflict with, or 
an exception to, the professed intent, and all the general principles 
Hnd provisions of the instrument. 

If the constitution had purported to have been instituted by a 
part of the people, instead of the whole ; and for purposes of injus- 
tice and slavery, instead of "justice and liberty;" and if " the 
general system of the laws" authorized by the constitution, had 
corresponded with that intention, there would then have been very 
good reason for saying that " the most common and obvious mean- 
ing" of the word "free," in such a connection, was to describe free 
persons as distinguished from slaves. But as the constitution is, 
in its terms, its professed intent, and its general principles and 
provisions, directly the opposite of all this ; and as the word " free " 
has a " common and obvious meaning" that accords with these terms, 
intent, principles, and provisions, its most " common and obvious 
meaning," in such a cormection, is just as clearly opposite to what 
it would have been in the other connection, as its most common 
and obvious meaning, in the other connection, would be opposite 
to the meaning claimed for it in this. This position must either 
be admitted, or else it must be denied that the connection in which 
a word stands has anything to do with fixing its most " common 
and obvious meaning." "^ 

*" Story says, "Are we at liberty, upon any principles of reason or common 
sense, to adopt a restrictive meaning which will defeat an avowed object of the 
constitution, when another equally natural, and more appropriate to the subject, is 
before us?" — 1 Story's Comm.,p. 445. 

Dane says, " With regard to the different parts of a statute, there is one general 
rule of construction ; that is, the construction of each and every part must be made 
on a full view of the whole statute ; and every part must have force and effect, if 
possible ; Jbr the meaning of every part is found in its connection with other 
parts." — 6 £>ane, 598. 

Vattel says, "Expressions have a force, and sometimes even an entirely different 
signification, according to the occasion, their connection, and their relation to other 
words. The connection and train of the discourse is also another source of inter- 
pretation. We ought to consider the whole discourse together, in order perfectly 
to conceive the sense of it, and to give to each expression, not so much the signifi- 
cation it may receive in itself, as that it ought to have from the thread and spirit 
of the discourse. This is the maxim of the Roman law, Incivile est, nisi tota lege 
ferspecta, iCna aliqua particula ejus proposita, judicare, vel respondere." (It is 
improper to judge of, or answer to, any one particular proposed in a law, unless the 
whole law be thoroughly examined.) — B. 2, ch. 17, sec. 285. 

Also, " The connection and relation of things themselves, serve also to discover 



208 RULES OF INTERPRETATION. 

Again. It has already been shown that the most common, and 
the nearly or quite universal meaning, given to the word free, 
both in this country and in England, when used in laws of a fun- 
damental character, like the constitution, or, indeed, in any other 
laws, (for the purpose of designating one person, as distinguished 
from another living under the same laws,) was not to designate a 
free person, as distinguished from a slave, but to distinguish a 
citizen, or person possessed of some franchise, as distinguished 
from aliens, or persons not possessed of the same franchise. The 
authority of this rule, then, so far as it regards the most " com- 
mon" meaning of this word in the law, is entirely in favor of the 
firgument for freedom, instead of the argument for slavery. 

2. But the rule fails to aid slavery for another reason. As has 
before been remarked, the word " free" is seldom or never used, 
even in common parlance, as the correlative of slaves, unless 
when applied to colored persons. A colored person, not a slave, 
is called a ^' free colored person." But the white people of the 
south are never, in common parlance, designated as '■'■free per- 
sons," but as white persons. A slaveholder would deem it an 
insult to be designated as a "/ree person," that is, using the word 
free in a sense correlative with slavery, because such a designa- 
tion would naturally imply the possibility of his being a slave. It 
would naturally imply that he belonged to a race that was some- 
times enslaved. Such an implication being derogatory to his race, 
would be derogatory to himself. Hence, where two races live 
together, the one as masters, the other as slaves, the superior race 
never habitually designate themselves as the " free persons," but 
by the appropriate name of their race, thus avoiding the implica- 
tion that they can be made slaves. 

Thus we find, that the use of the word " free" was " common," 



and establish the true sense of a treaty, or of any other piece. The interpretation 
ought to be made in such a manner that all the parts appear consonant to each 
other, that what follows agree with what went before ; at least, if it do not mani- 
Jeslly appear, that, by the last clauses, something is changed that went before." — 
Same, sec. 286. 

The way the advocates of slavery proceed in interpreting the constitution, is this. 
Instead of judging of the meaning of the word /ree by its connection with the rest 
of the instrument, they first separate that word entirely from all the rest of ihejnstru- 
ment ; then, contrary to all legal rules, give it the worst meaning it is under any 
circumstances capable of; then bring it back into the instrument; make it the 
ruling word of the instrument ; and finally cut down all the rest of the instrument 
so as to make it conform to the meaning thus arbitrarily and illegally given to this 
one word Ji-ce. 



FIRST RULE CITED FOR SLAVERY. 209 

in the law, to describe those who were citizens, but it was not 
" common," either in the law, or in common parlance, for describ- 
ing the white people of the south, as distinguished from their 
slaves. The rule, then, that requires the most common and ob- 
vious meaning of the word to be preferred, wholly fails to give to 
the word free, as used in the constitution, a meaning correlative 
with slaves. 

3. But in point of fact, the rule that requires us to prefer the 
most " common and obvious meaning," is of a wholly subordinate 
and unaulhoriialive character, when compared with the rules 
before laid down, except so far as it is necessary to be observed in 
order to preserve a reasonable connection and congruity of ideas, 
and prevent the laws from degenerating into nonsense. Further 
than this, it has no authority to give an unjust meaning to a word 
that admits of a just one, or to give to a word a meaning incon- 
sistent with the preamble, the general principles, or any other pro- 
visions, of an instrument. In short, all the rules previously laid 
down, (unless, perhaps, the fourth, which is nearly or quite synon- 
ymous with this,) take precedence of this, and this is of no conse- 
quence, in comparison with them, (except as before mentioned,) 
when they come in conflict. In this case, however, of the word 
free, there is no conflict. And the same may be said of the 
words, *' held to service or labor," and " the importation of per- 
sons," Neither of these two latter forms of expression had prob- 
ably ever been used in the country, either in law or in common 
parlance, to designate slaves or slavery. Certainly there had 
been no commo7i use of them for that purpose ; and such, there- 
fore, cannot be said to be either their common or their obvious 
meaning. But even if such were their common and obvious 
meaning, it would not avail against the rule in favor of liberty or 
right, or any of the other rules before laid down. 

That the other rules take precedence of this, is proved by the 
fact, that otherwise those rules could never have had an existence. 
If this rule took precedence of those, it would invariably settle the 
question ; no other rule of interpretation would ever be required ; 
because, it is not a supposable case, that there can ever be two 
meanings, without one being more common or obvious than the 
other. Consequently, there could never be any opportunity to 
apply the other rules, and they, therefore, could never have had 
an existence. 

If this rule took precedence of the others, all legal interpreia- 
18^ 



210 RULES OF INTERPRETATION. 

tion would be resolved into the simple matter of determining 
which was the most common and obvious meaning of words in 
particular connections. All questions of written law would thus 
be resolved into a single question of fact ; and that question of 
fact would have to be decided by a judge, instead of a jury. 
And a very slight preponderance of evidence, as to the senses in 
which words are most commonly understood, would often have to 
determine the question. The judge, too, would have to be pre- 
sumed omniscient as to the most common and obvious meaning of 
words, as used by the people at large, each one of whom is known 
to often use words in different senses, and with clifferent shades 
of meaning, from all others. And the slightest preponderance of 
evidence on this point, that should appear to the judge's mind 
alone, would be sufficient to overrule all those palpable principles 
of liberty, justice, right, and reason, which the people at large, 
(who cannot reasonably be presumed to be very critical or learned 
plilologists,) have in view in establishing government and laws. 
In short, courts, acting on such a principle, would in practice be 
little or nothing more than philological, instead of legal, tri- 
bunals. 

Government and laws being established by the people at large, 
not as philologists, but as plain men, seeking only the preserva- 
tion of their rights, the words they use must be made to square 
with that end, -if ■possible, instead of th»ir rights being sacrificed to 
nice philological criticisms, to which the people are strangers. 
Not that, in interpreting written laws, the plain and universal 
principles of philology are to be violated, for the sake of making 
the laws conform to justice ; for that would be equivalent to abol- 
ishing all written laws, and abolishing the use of words as a means 
of describing the laws. But the principle is, that great latitude 
must be allowed in matters of philology, in accommodation of the 
various senses in which different men use and understand the 
same word in the same circumstances ; while a severe and rigid 
adherence is required to principles of natural right, which are far 
more certain in their nature, and in regard to which all men are 
presumed to be agreed, and which all are presumed to have in 
view in the establishment of government and laws. It is much 
more reasonable to suppose — because the fact itself is much more 
common — that men differ as to the meaning of words, thap that 
they differ as to the orinciples which they try to express by their 
words. 



FIRST RULE CITED FOR SLAVERY. 211 

"No two men, in drawing up the same law, would do it in the 
same words, owing to iheir different tastes, capacities, and habits, 
in the use of language. And yet a law, when written, must, in 
theory, mean the same to all minds. This necessity of having 
the law mean the same to all minds, imposes upon courts the 
necessity of disregarding men's different tastes and habits in the 
matter of words, and of construing the words of all laws so as to 
make them conform as nearly as possible to some general princi- 
ple, which all men are presumed to have in view, and in regard lo 
which all are presumed to be agreed. And that general principle 
is justice." 

The result, then, is, that justice and men's rights — the preserva- 
tion of which is the great object of all the government and laws 
to which it is a supposable case that the whole people can have 
agreed — must not be staked on the decision of such a nice, friv- 
olous, and uncertain point, as is the one, whether this or that 
meaning of a word is the more common one in the community, or 
the more obvious one to the generality of minds, in particular 
cases, when, in fact, either meaning is grammatically correct, and 
appropriate to the subject. Instead of such folly and suicide, any 
meaning, that is consonant to reason in the connection in which the 
word stands, and that is consistent with justice, and is known and 
received by society, though less common or obvious than some 
others, must be adopted, rather than justice be sacrificed, and the 
whole object of the people in establishing the government be 
defeated. 

So great is the disagreement, even among scholars and lexicog- 
raphers, as to the meaning of words, that it would be plainly 
impossible for the most acute scholars to agree upon a code of 
written laws, having in view the preservation of their natural 
rights, unless they should also expressly or impliedly agree, that, 
out of regard to the different senses in which the different indi- 
viduals of their number might have understood the language in 
which the laws were written, the courts, in construing those 
laws, should be allowed very great latitude whenever it should be 
necessary, for the purpose of finding a sense consistent with justice. 
And if this latitude would be required in construing an instrument 
agreed to only by scholars and critics, how much more is it 
required in construing an instrument agreed to by mankind at 
large. 

This rule, then, that nrefers the most common and obvious 



212 RULES OF INTEKPKETATION. 

meaning of words, is a very insignificant and unimportant one, 
compared with the previous ones; and it can legally be resorted to, 
only where the prior ones, (unless, perhaps, the fourth,) are either 
inapplicable to, or have failed to determine the question ; as, for 
instance, in cases where there is involved no question of right or 
wrong, or of consistency or inconsistency with the preamble, the 
general principles, or other particular provisions of an instrument ; 
where nothing more than questions of expediency or convenience 
are concerned. And even a clear case of serious inconvenience 
only, is sufficient to set aside the rule, unless the language be very 
explicit."^ 

This rule, in favor of the most common and obvious meaiMfig 
of words, has never, so far as I am aware, been laid down as deci- 
sive, by the Supreme Court of the United States, in any cases 
where any question of right, consistency, or of great and manifest 
convenience, was involved. I think it has generally been cited as 
authoritative, in constitutional questions, only where the doubt 
was, whether a particular constitutional power had been vested in 
the general government, or reserved to the states. "' In such cases, 
where the power was admitted to be in one government or the 
other, and where no question of right, of consistency with other 
parts 6f the instrument, or of manifest convenience, was involved, 
the court, very properly assuming that the power might be as 
rightfully vested in one government as in the other, at the dis- 
cretion of the people, have held that the doubt should be deter- 
mined by taking the language of the constitution to have been 
used in its most common and obvious sense. But such a de- 
cision of a mere question as to which of two governments is the 
depository of a particular power, which is conceded to be vested 



* No statute shall be construed in such manner as to be inconvenient, or against 
reason." — 7 Bacon's Ahridg., 465. 

" Where the con.struction of a statute is doubtful, aii argument from convenience 
will have weight." — 3 Mass. ,221. 

Ch. .T. Shaw says, " The argument from inconvenience may have considerable 
weight upon a question of construction, where the language is doubtful ; it is not 
to be presumed, upon doubtful language, that the legislature intended to establish 
a rule of action, which would be attended with inconvenience." — 11 Pickering, 
490. 

Ch. .T. Abbott says, " An exposition of these statutes, pregnant with so much 
inconvenience, ought not to be made, if they will admit of any other reasouable 
construction."— 3 Barnwell, <f- A, 271. 

" The argument from inconvenience is very forcible in the law, as often hath 
been observed." — Coke Lit., 383, a. note. 



SECOND RULE CITED FOR SLAVERY. 213 

in one or the other, has nothing to do with cases where a question 
of right or wrong is involved, or of consistency with other parts of 
the instrument, or even where a serious and clear question of 
inconvenience is concerned. 

If, however, that court have, at any time, laid greater stress 
upon the rule, they are not sustained, either by the reason of 
things, or by the practice of other courts ; nor are they consistent 
or uniform in the observance of it themselves.* 



SECOND KTTLE CITED FOR SLAVERY. 

A second rule of interpretation, relied upon by the advocates of 
slavery, is that where laws are ambiguous, resort may be had to 
exterior circumstances, history, &c., to discover the probable inten- 
tion of the law-givers. 

But this is not an universal rule, as has before been shown, 
(under rule seventh,) and has no application to a question that can 
be settled by the rules already laid down, applicable to the words 
themselves. It is evident that we cannot go out of the words of a 
law, to find its meaning, .until all the rules applicable to its w-ords 
have been exhausted. To go out of a law to find the meaning of 
one of its words, when a meaning, and a good meaning, can be 
found in the law, is assuming gratuitously that the law is incom- 
plete ; that it has been but partially written ; that, in. reality, it is 
not a law, but only a part of a law ; and that we have a right to 
make any additions to it that we please. 

Again. When we go out of the words of the law, we necessa- 
rily go into the regions of conjecture. We therefore necessarily 



* The Supreme Court United States say: " It is undoubtedly a well-established 
principle in the exposition of statutes, that every part is to be considered, and the 
'intentionof the legislature to be extracted from the whole. It is also true, that 
where srreat inconrcnience will result from a particular construction, tiiat construc- 
tion is'to he avoided, unless the meaning of the legislature be plain, in which case 
it must lie obeyed." — 2 Cranch, 358. 

" The natural import of the words of any legislative act, according to the com- 
mon use of them, rclien applied to the suhjecl matter of the act, is to be considered 
as expressing the intention of the legislature ; inilcss tke intention, so resulting 
from the ordinary import of the tcxrrds, be repugnant to souml, acknowledged 
principles of national poUcxj. And if that intention be repugnant to such principles 
of national policy, then Ike import of the tcords ought to be enlarged or restrained, 
«o that it may comport with those principles, unless the intention of the legislature 
\e clearly and manifestly repugnant to them." — Opinion of the Justices, tnclud- 
W£ Parsons ; 7 Mass., 523. 



214 RULES OF INTERPRETATION. 

sacrifice certainty, which is one of the vital principles of the law. 
This cannot be done for any bad purpose. It can only be done to 
save rights, (not to accomplish wrongs,) depending on the efficacy 
of the law. 

To go out of a law to find a bad meaning, when a good meaning 
can be found in the law, is also to sacrifice right, the Other vital 
principle of law. So that both certainty and right would be sacri- 
ficed by going out of the constitution to find the meaning, or 
application, of the word free ; since an appropriate and good 
meaning is found in the instrument itself. 

Further. It has before been shown, (under rule seventh,) that a 
word is not, legally speaking, " ambiguous," when the only ques- 
tion is between a just and an unjust meaning; because the rule, 
which requires the right to be preferred to the wrong, being uni- 
form and imperative, makes the meaning always and absolutely 
certain ; and thus prevents the ambiguity that might otherwise 
have existed. 

It is true that, in a certain sense, such a word may be called 
" ambiguous," but not in a legal sense. Almost every word that 
is used in writing laws, might be called ambiguous, if we were 
allowed to lose sight of the fact, or uftnecessarily abandon the 
presumption, that the law is intended for purposes of justice and 
liberty. 

But this point has been so fully discussed in the former part of 
this chapter, (under rule seventh,) that it need not now be discussed 
at length. 

It is not to be forgotten, however, that even if we go out of the 
constitution to find the meaning of the word/ree, and resort to all 
the historical testimony that is of a nature to be admissible at all, 
we shall still be obliged to put the same construction upon ft as 
though we take the meaning presented by the constitution itself. 
The use of the word in all laws of a similar character, and even 
of a dissimilar character, to the constitution, fixes this meaning. 
The principles of liberty, prevailing in the country generally, as 
evidenced by the declaration of independence, and the several State 
constitutions, and constituting at least the paramount, the prepon- 
derating, law, in every State of the Union, require the same 
meaning to be given to the word. 

The fact, that this prevailing principle of liberty, or this general 
principle of law, was, at that time, violated by a small portion, 
(perhaps one fortieth,) of the community, (the slaveholders,) fur- 



SECOND RULE CITED FOR SLAVERY. 215 

mshes no legal evidence against this construction ; because the 
conslitutioi:i, like every other law, presumes everybody willing to 
do justice, unless the contrary explicitly appear in the instrument 
itself. This is a reasonable presumption, both in fact and in lav/, 
as has before been suggested, (under rule sixth.) What court 
ever laid down the rule that an instrument was " ambiguous,'' or 
that an unjust meaning must be given to it, because its just mean- 
ing was more just than the parties, or some few of the parties, 
could reasonably be presumed to have intended the instrument 
sho'uld be ? If this idea ,were admissible, as a rule of interpretation, 
all our most just and equitable laws are liable to be held ambiguous, 
and to have an unjust construction put upon them, (if their words 
will admit of it,) on the ground of their present construction being 
more just than some portion of the community, for which they 
were made, could be presumed to desire them to be. The slave- 
holders, then, must be presumed to have been willing to do justice 
to their slaves, if the language of the constitution implies it, 
whether they were really willing or not. No unwillingness to do 
justice can be presumed on the part of the slaveholders, any more 
than on the part of any other of the parties to the constitution, as 
an argument against an iTiterpretation consistent with liberty. 

Again. The real or presumed intentions of that particular portion 
of the " people," who were slaveholders, are of no more legal con- 
sequence towards settling ambiguities in the constitution, than are 
the real or presumed intentions of the same number of slaves ; for 
ooth slaves and slaveholders, as has been shown, (under rule 
sixth,) were, in law, equally parties to the constitution. Now, 
there were probably five or ten times as many slaves as slaveholders. 
Their intentions, then, which can be presumed to have been only 
for liberty, overbalance all the intentions of the slaveholders. The 
intentions of all the non-slaveholders, both north and south, must 
also be thrown into the same scale with the intentions of the slaves 
— the scale of liberty. 

But further. The intentions of all parties, slaves, slaveholders, 
and non-slaveholders, throughout the country, must be presumed 
to have been precisely alike, because, in theory, they all agreed to 
the same instrument. There were, then, thirty, forty, or fifty, 
Avho must be presumed to have intended liberty, where there was 
but one that intended slavery. If, then, the intentions, principles, 
and interests, of overwhelming majorities of " the people," who 
** ordained and established the constitution," are to have any 



216 RULES OF INTERPRETATION. 

weight in settling ambiguities in it, the decision must be in favor 
of liberty.^ 

But it will be said that, in opposition to this current of testimony, 
furnished by the laws and known principles of the nation at large, 
we have direct historical evidence of the intentions of particular 
individuals, as expressed by themselves at or about the time. 

One answer to this argument is, that we have no legal evidence 
whatever of any such intentions having been expressed by a single 
individual in the whole nation. 

Another answer is, that we have no authentic historical evidence 
of such intentions having been expressed by so many as Jive hun- 
dred iitdividtials. If there be such evidence, where is it ? and 
who loere the itulividuals ? Probably not even one hundred such 
can be Tuimed. And yet this is all the evidence that is to be offset 
against the intentions of the whole " people of the United States," 
as expressed in the constitution itself, and in the general current 
of their then existing laws. 

It is the constant effort of the advocates of slavery, to make the 
constitutionality of slavery a historical question, instead of a legal 
one. In pursuance of this design, they are continually citing the 
opinions, or intentions, of Mr. A, Mr. B, and Mr. C, as handed 
down to us by some history or other ; as if the opinions and inten- 
tions of these men were to be taken as the opinions and intentions 
of the whole people of the United States ; and as if the irrespon- 
sible statements of historians were to be substituted for the consti- 
tution. If the people of this country have ever declared that these 
fugitive and irresponsible histories of the intentions and sayings 
of single individuals here and there, shall constitute the constitu- 
tional law of the country, be it so ; but let us be consistent, burn 

* There is one short and decisive answer to all the pretence- that the slaveholders 
eannot be presimied to have agreed to the constitution, if it be ineonsistent with 
slavery ; and that is, that if the slaveholders cannot be presumed to have agreed to 
it, then //wy, and not the slaves, must be presumed to have been no parties to il,. 
and must therefore be excluded from all rights in it. The slancs can certainly be 
presumed to have agreed to it, if it gives tliem liberty. And the instrument must 
be ])resumed to have been made Ijy and for those who could reasonably agree to it. 
If, therefore, any body can be excluded from all rights in it, on the ground that 
they cannot be presumed to have agreed to such an instrument as it really is, it 
must be the slaveholders themselves. Independently of this presumption, there is- 
just as much authority, in the constitution itself, for excluding slaveholders, as for 
excluding the slaves, from all rights in it. And as the slaves are some ten or fifteen 
limes more numerous than the slaveholders, it is ten or fifteen times more impor» 
taut, on legal principles, that they be included among the parties to the consti».sa» 
tion, than that the slaveholders should be. 



THIRD RULE CITED FOR SLAVERY. 217 

the constitution, and depend entirely upon history. It is nothing 
but folly, and fraud, and perjury, to pretend to maintain, and swear 
to support, the constitution, and at the same time get our constitu- 
tional law from these irresponsible sources. 

If every man in the country, at the time the constitution was 
adopted, had expressed the intention to legalize slavery, and that 
fact were hktorically well authenticated, it would be of no legal 
importance whatever — and why? Simply because such external 
expressions would be no part of the instrument itself. 

Suppose a man sign a note for the payment of money, but at 
the time of signing it declare that it is not his intention to pay it, 
that he does not sign the note with such an intention, and that he 
never will pay it. Do all these declarations alter the legal char- 
acter of the note itself, or his legal obligation to pay ? Not at all 
— and why ? Because these declarations are no part of that par- 
ticular promise which he has expressed by signing the note. So 
if every man, woman, and child in the Union, at the time of 
adopting the constitution, had declared that it was their intention 
to sanction slavery, such declarations would all have been but idle 
wind — and why? Because they are no part of that particular 
instrument, which they haVe said shall be the supreme law of the 
land. If they wish to legalize slavery, they must say so in the 
constitution, instead of saying so out of it. By adopting the con- 
stitution, they say just what, and only what, the constitution itself 
expresses. 

THIRD RULE CITED FOR SLAVERY. 

A third rule of interpretation, resorted to for the support of 
slavery, is the maxim that " Usage is the best interpreter of 
laws." 

If by this rule be meant only that the meaning to be applied to 
a word in a particular case ought to be the same that has usually 
been applied to it in other cases of a similar naUire, we can, of 
course, hnve no objection to the application of the rule to the word 
" free ;" for usage, as has already been shown, Will fix upon it a 
meaning other than as the correlative of slaves. 

Or if by this rule be meant that all laws must be interpreted 
according to those rules of interpretation which usage has estab- 
lished, that is all that the advocates of liberty can desire, in the 
interpretation of the constitution. 

But if the rule requires that after a particular law has once, 
19 



218 RULES OF INTERPRETATION. 

twice, or any number of times, been adjudicated upon, it must 
always be construed as it always has been, the rule is ridiculous ; 
it makes the interpretation given to a law by the courts superior 
10 the law itself; because the law had a meaning of its own before 
any " usage " had obtained under it, or any judicial construction 
had been given to it. 

It is the original meaning of the constitution itself that we are 
now seeking for ; the meaning which the courts were bound to put 
upon it from the beginning ; not the meaning they actually have 
put upon it. We wish to determine whether the meaning which 
they have hitherto put upon it be correct. To settle this point, 
we must go back to the rules applicable to the instrument itself, 
before any judicial constructions had been given to it. All con- 
structions put upon it by the courts or the government, since the 
instrument loas adopted, come too late to be of any avail in set- 
tling the meaning the instrument had at the time it was adopted 
— certainly unless it be impossible to settle its original meaning 
by any rules applicable to the instrument itself. 

We charge the courts with having misinterpreted the instrument 
from the beginning ; with having violated the rules that were 
applicable to the instrument before any practice or usage had ob- 
tained under it. This charge is not to be answered by saying that 
the courts have interpreted it as they have, and that that interpreta- 
tion is now binding, on the ground of usage, whether it were orig- 
inally right or wrong. The constitution itself is the same now 
that it was the moment it was adopted. It cannot have been 
altered by all the false interpretations that may have been put 
upon it. 

If this rule were to be applied in this manner to the constitution, 
it would deserve to be regarded as a mere device of the courts to 
maintain their own reputations for infallibility, and uphold the 
usurpations of the government on which they are dependent, 
rather than a means of ascertaining the real character of the con- 
stitution.* 

* In case Ex parte BoUman and Swartout, Justice Johnson, of the Sup. Court 
U. S., said,— 

" I am far, very far, from denying the general authority of adjudications. Uni- 
formity in decisions is often as importaut as their abstract justice. (By no means.) 
But I deny that a court is precluded from the right, or exempted from the necessity, 
of examining into the correctness or consistency of its decisions, or those of any 
other tribunal. If I need precedent to support me in this doctrine, I will cite the 
example of this court, (Sup. Court U. S.) which, in the case of the United States 
r». Moore, February, 1805, acknowledged that in the case of the United States vs. 



FOtTRTH RULE CITED FOR SLAVERY. 219 

But perhaps it will be said, that by usage is meant the practice 
of the people. It would be a sufficient answer to this ground to 
say, that usage, against law and against right, can neither abolish 
nor change the law, in any case. And usage is worth nothing in 
the exposition of a law, except where the law is so uncertain that 
its meaning cannot be settled by the rules applicable to its w-ords. 
Furthermore, it is only ancient usage that is, in any case, of any 
considerable importance. 

This whole matter of usage is well disposed of in the note."^ 



FOURTH RULE CITED FOR SLAVERY. 

A fourth rule of interpretation, relied on for the support of 
slavery, is that the ivords of a law must be construed to subserve 
the intentions of the legislature. So also the words of a contract 



Sims, February, 1303, it had exercised a jurisdiction it did not possess. Strange 
indeed would be the doctrine that an inadvertency, once committed by a court, shall 
ever after impose on it the necessity of persisting- in its error. A case thai cannot 
be tested by principle is not law, and in a thousand instances have such cases been 
declared so by courts of justice." — 4 Ci'anch, 103. 

" Nullius hominis authoritas tantum apud vos valere debet, ut meliora non se- 
gueremur si guis attulcrit." (The authority of no man ought to weigh so much 
with us, that if any one has olTered anything better, we may not follow it.) — Coke 
Lit., 383, a. note. 

* In Vaughn's Reports, p. 109, 70, the court say, — 

" The second objection is, that the king's officers by usage have had in several 
kings' times the duties of tonnage and poundage from wrecks. 

" 1. We desired to see ancient precedents of that usage, but could see but one in 
the time of King James, and some in the time of the last king ; which are so new 
that they are not considerable, (not worthy to be considered.) 

"2. Where the penning of a statute is dubious, long usage is a just medium to 
expound it by ; for jus el norma loquendi (the rule and law of speech) is governed 
by usage. And the meaning of things spoken or written must be, as it hath con- 
stantly been received to be by common acceptation. 

" But if usage hath been against the obvious meaning of an act of parliament, 
by the vulgar and common acceptation of the words, then it is rather an oppression 
of those concerned, than an exposition of the act, especially as the usage may be 
circumstanced. 

" As, for instance, the customers seize a man's goods, under pretence of a duty 
against law, and thereby deprive him of the use of his goods, until he regains 
them by law, which must be by engaging in a suit with the king, rather than do 
so he is content to pay what is demanded for the king. By this usage all the 
goods in the land may be charged with the duties of tonnage and poundage ; for 
when the concern is not great, most men (if put to it) will rather pay a little 
wrongfully, than free themselves from it overchargeably. 

" And in the present case, the genuine meaning of the words and purpose of the 
act, is not according to the pretended usage, but against it, as hath been shewed j 
therefore usage in this case weighs not." 



220 RULES OF INTERPRETATION. 

must be construed to subserve the intentions of the parties. And 
the constitution must be construed to subserve the intentions of 
" the people of the United States." 

Those who quote this rule in favor of slavery, assume that it 
was the intention of " the people of the United States" to sanction 
slavery ; and then labor to construe all its words so as to make 
them conform to that assumption. 

But the rule does not allow of any such assumption. It does 
not supersede, or at all infringe, the rule that " the intention of 
the legislature is to be collected from the words they have used to 
convey it.""* This last rule is obviously indispensable to make 
written laws of any value ; and it is one which the very existence 
of written laws proves to be inflexible ; for if the intentions could 
be assunied independently of the words, the words would be of no 
use, and the laws of course would not be written. 

Nor does this rule, that words are to be construed so as to sub- 
serve intentions, supersede, or at all infringe, the rule, that the 
intentions of the legislature are to be taken to be just what their 
words express, whether such be really their intentions or not.t 

* The Supreme Court United States say, " The intention of the legislature is 
to be searched for in the words which the legislature has employed to convey it." 
-7 Cranch, 60. 

.\lso, " The intention of the instrument (the constitution) must prevail ; this 
intention must be collected from its words." — 12 Wheaton, 332. 

+ Stortj says, " We must take it to be true, that the legislature intend precisely 
what tliey say." — 1 Stori/s C. C. Rcp.,G53. 

Vciflcl says, •' Much less is it permitted, when the author of a piece has himself 
thtre made known his reasons and motives, to attribute to him some secret reason, 
as the foundation to interpret the piece contrary to the natural sense of the terms. 
Though he really had the vieio aUributcil to him, if he has concealed it, and made 
known others, the interpretation can only be founded upon these, (zchich he has 
made knoxon,) and not upon the views which the authx)r has not expressed ; ice take 
for true against him what he has sujflciently declared." — B. 2, ch. 17, sec. 237. 

Rutherfortk says, " The safest ground for us to stand upon, is what the writer 
himself affords us ; when the legislator himself has plainly declared the reason 
(intention) of the law in the body of it, we may argue from thence with certainty." 
— B. 2, ch. 7, p. 330. 

Rutkcrforlh. also says, " A promise, or contract, or a will, gives us a right to what- 
ever the promiser, the contractor, or the testator, designed or intended to make ours. 
But his design or intention, if it is considered merely as an act of his mind, cannot 
be known to anyone besides himself. When, therefore, we speak of his design or 
intention as the measure of our claim, we must necessarily be understood to mean 
the design or intention which he has made known or expressed by some outward 
mark ; hecau&e, a design or intention which does not appear, can have no more 
etTect, or can no more produce a claim, than a design or intention which does not 
exist. 

"Li like manner, the obligations that are produced by the civil laws of our coun- 



FOURTH RULE CITED FOR SLAVERY. 221 

The two rules, that " words must be construed to subserve 
intentions," and that " intentions must be collected from the words," 
may, at first view, appear to conflict with each other. There is, 
however, no conflict between them. The rule, that words must be 
construed to subserve intentions, applies only to ambiguous words; 
to those words which, on account of their ambiguity, need to be 
construed ;^ and it assumes that the intentions of the law have 
been made knowTi by other words, that are not ambiguous. The 
whole meaning of the rule, then, is, that the intentions of ambigu- 
ous words must be construed in conformity with the i?itenlion.s 
expressed in those words that are explicit A 

Where no intentions are explicitly revealed, the court will pre- 
sume the best intentions of which the words, taken as a whole, are 
capable; agreeably to the rule cited from the Supreme Court of 
Massachusetts, viz., " It is always to be presumed that the legisla- 
ture intend the most beneficial construction of their acts, when the 
design of them is not apparent." — 4 Mass., 537. 

This rule, then, that the ambiguous words of an instrument 
must be construed to subserve the intentions expressed by other 
words, that are explicit, requires that the ambiguous words in the 
constitution (if there are any such) be construed in favor of liberty, 
instead of slavery. 

try arise from the intention of the legislator ; not merely as this intention is an act 
of the mind, but as it is declared or expressed by some outward sign or marlc, 
which makes it known to us. For the intention of the legislator, whilst he keeps 
it to himself, produces no effect, and is of no more account than if he had no such 
intention. Where we have no knowletige, we can be under no obligation. We 
cannot, therefore, be obliged to comply with his will, where we do not know what 
his will is. And we can no otherwise know what his will is, than by means of 
some outward sign or mark, by which this will is expressed or declared." — B. 2, 
chap. 7, p. 307. 

* All rules of construction apply only to words that need to he construed; to those 
which are capable of more than one meaning, or of a more extended or restricted 
sense, and whose meanings in the law are therefore uncertain. Those words whose 
meanings are plain, certain, and precise, are not allowed to be construed at all. It 
is a fundamental maxim, as before cited, (under rule thirteenth,) that it is not ad- 
missible to interpret what needs no ihterpretation. 

+ Vattel says, " If he who has expressed himself in an obscure or equivocal man- 
ner, has spoken elsewhere more clearly on the same subject, he is the best inter- 
preter of himself. We ought to interpret his obscnre or vague erpressions in such 
a manner that iheij may agree with those terms that are clear and without ambi- 
guity, which he has used elsewhere, either in the same treaty or in some other of the 
like kind." — B. 2, ch. 17, sec. 284. 

And this is an universal rule with courts, to interpret the ambigTious worda of 
au instrument by those that are explicit. 

19* 



222 KULES OF INTERPRETATION. 

Thus have been stated and examined all the rules of interpreta- 
tion, (with the exception of one, to be named hereafter,) that occur 
to me as being of any moment in this discussion. And I think 
the soundness and permanent authority of those that make for 
liberty and justice, if indeed they do not all make for liberty and 
justice, have been shown. 

But of the reason and authority of all these rules, the reader 
must of necessity judge for himself; for their whole authority rests 
on their reason, and on usage, and not on any statute or constitu- 
tion enacting them.* And the way for the reader to judge of 
their soundness, is, for him to judge whether they are the rules by 
which he icishcs his oion contracts, and the laws on which he him- 
self relies for protection, to be co?istrued. Whether, in fact, honest 
coyitracts, honest laws, and honest constitutions, can he either agreed 
upon, or sustained, by mankind, if they are to be construed on any 
other principles than those contahied in these rules. 

If he shall decide these questions in favor of the rules, he may 
then properly consider further, that these were the received rules 
of legal interpretation at the time tlie constitution was adopted, and 
had been for centuries. That they had doubtless been the received 
rules of interpretation from the time that laws and contracts were 
first formed among men ; inasmuch as they are such as alone can 
secure men's rights under their honest contracts, and under honest 
laws, and inasmuch also as they are such as unprofessional and 
unlearned men naturally act upon, under the dictates of common 
sense, and common honesty. 

If it now be still objected that the people, or any portion of 
them, did not intend what the constitution, interpreted by the pre- 
eeding rules, expresses, the answer is this. 

We must admit that the constitution, of itself, independently of 
the actual intentions of the'people, expresses some certain, fixed, 
definite, and legal intentions ; else the people themselves would 
express no intentions by agreeing to it. The instrument would, 
in fact, contain nothing that the people could agree to. Agreeing 
to an instrument that had no meaning of its own, would only be 
aafreeinc to nothino-. 



*It will not do to take these, or any other rules, on trust from courts ; for courts, 
although they more generally disregard, or keep out of sight, all rules which stand 
HI the way of any unlawful decisions which they are determined to make, can yet 
not very unfrequently lay down false rules to accomplish their purposes. For these 
reasons, only those of their rules that are plainly adapted to promote certainty and 
justice, are to be relied on. 



RULES OF INTERPRETATION. 223 

The constitution, then, must be admitted to have a meaning of 
its own, independently of the actual intentions of the people. And 
if it be admitted that the constitution has a meaning of its own, the 
question arises. What is that meaning? And the only answer that 
can be given is, that it can be no other than the meaning which 
its words, interpreted by sound legal rules of interpretation, express. 
That, and that alone, is the meaning of the constitution. And 
whether the people who adopted the constitution really meant the 
same things which the constitution means, is a matter which they 
were bound to settle, each individual with himself, before he agreed 
to the instrument ; and it is therefore one with which we have now 
nothing to do. We can only take it for granted that the people 
intended what the constitution expresses, because, by adopting the 
instrument as their own, they declared that their intentions corres- 
ponded with those of the instrument. The abstract intentions, or 
meaning, of the instrument itself, then, is all that we have now any 
occasion to ascertain. And this we have endeavored to do, by the 
application of the foregoing rules of interpretation. 

It is perfectly idle, fraudulent, and futile, to say that the people 
did not agree to the instrument iyi the sense which these rules fix 
upon it ; for if they have not agreed to it in that sense, they have 
not agreed to it at all. The instrument itself, as a legal instru- 
ment, has 7io other sense, in which the people could agree to it. 
And if the people have not adopted it in that sense, they have not 
yet adopted the constitution; and it is not now, and never has 
been, the law of the land. 

There would be just as much reason in saying that a man who 
signs a note for the payment of five hundred dollars, does not sign 
it in the legal sense of the note, but only in the sense that he will 
not pay, instead of the sense that he will pay, so much money, as 
there is in saying that the people did not agree to the constitution 
in its legal sense, but only in some other sense, which slaveholders, 
pirates, and thieves might afterwards choose to put upon it. 

Besides, does any one deny that all the rest of the constitution, 
except what is claimed for slavery, was agreed to in the sense 
which these rules put upon it? No decent man will make such a 
denial. Well, then, did not the people intend that all pJirts of the 
same instrument should be construed by the same rules? Or do 
the advocates of slavery seriously claim that three or four millions 
of people, thinly scattered over thirteen states, and having no 
opportunity for concert, except by simply saying yea, or nay, to the 



224 RULES OF INTERPRETATION. 

instrument presented to them, did, nevertheless, at the time of 
agreeing to the instrument, agree, also, by means of some myste- 
rious, invisible, miraculous intercourse, that the slave clauses, as 
they are called, should be construed by directly opposite rules from 
all the rest of the instrument? Even if they did so agree, such 
Eigreement would be no part of the constitution; but if they did 
not, they certainly did not agree to sanction slavery. No matter 
what any, or all, of them said before, or after, or otherwise than by, 
the adoption of the instrument. What they all said by the single 
act of adoption, is all that had any effect in establishing the con- 
stitutional law of the country. 

Certainly, the whole instrument must be construed by uniform 
rules of interpretation. If, then, the slave clauses, as they are 
called, are construed so as to sanction slavery, all the rest of the 
instrument must be construed to sanction all possible iniquity and 
injustice of which its words can be made to insinuate a sanction. 
More than this. "TAe laios passed '•in pursuance of the constitu- 
tion,''' must of course be construed by the same rules as the consti- 
tution itself. If, then, the constitution is to be construed as ad- 
versely as possible to liberty and justice, all " the laws passed in 
pursuance of it" must be construed in the same manner. Such 
are the necessary results of the arguments for slavery. 

Nothing can well be more absurd than the attempt to set up the 
real or pretended intentions of a few individuals, in opposition to 
the legal meaning of the instrument the whole people have adopt- 
ed, and the presumed intentions of every individual who was a 
party to it. Probably no two men, framers, adopters, or any others, 
ever had the same intentions as to the whole instrument ; and 
probably no two ever will. If, then, one man's actual intentions 
are of any avail against the legal meaning of the instrument, and 
against his presumed intentions, any and every other man's actual 
intentions are of equal importance ; and consequently, in order to 
sustain this theory of carrying into effect men's actual intentions, 
we must make as many different constitutions out of this one 
instrument, as there were, are, or may be, different individuals 
who were, are, or may be, parties to it. 

But this is not all. It is probable that,, as matter of fact, four 
fifths, and, not unlikely, nine tenths, of all those who were legally 
parties to the constitution, never even read the instrument, or had 
any definite idea or intention at all in regard to the relation it was 
to bear, either to slavery, or to any other subject. Every inhab- 



RULES OF INTERPRETATION. 225 

itant of the country, man, woman, and child, was legally a party to 
the constitution, else they would not have been bound by it. Yet 
how few of them read it, or formed any definite idea of its charac- 
ter, or had any definite intentions about it. Nevertheless, they 
are all presumed to have read it, understood it, agreed to it, and to 
have intended just what the instrument legally means, as well in 
regard to slavery as in regard to all other matters. And this pre- 
sumed intention of each individual, ivho had no actual inteHiio7i at. 
dU, is of as much weight in law, as the actual intention of any of 
those individuals, whose real or pretended intentions have been so 
much trumpeted to the world. Indeed the former is of altogether 
more importance than the latter, if the latter were contrary to the 
legal meaning of the instrument itself. 

The whole matter of the adoption of the constitution is mainly a 
matter of assumption and theory, rather than of actual fact. Those 
who voted against it, are just as much presumed to have agreed to 
It, as those who voted for it. And those who were not allowed to 
vote at all, are presumed to have agreed to it equally with the 
others. So that the whole matter of the assent and intention of 
the people, is, in reality, a thing of assumption, rather than of 
reality. Nevertheless, this assumption must be taken for fact, as 
long as the constitution is acknov.dedged to be law ; because the 
constitution asserts it as a fact, that the people ordained and estab- 
lished it; and if that assertion be denied, the constitution itself is 
denied, and its authority consequently invalidated, and the govern- 
ment itself abolished. 

Probably not one half, even, of the male adults ever so much as 
read the constitution, before it was adopted. Yet they are all pre- 
sumed to have read it, to have understood the legal rules of inter- 
preting it, to have understood the true meaning of the instrument, 
legally interpreted, and to have agreed to it in that sense, and that 
only. And this presumed intention of persons who never actually 
read the instrument, is just as good as the actual intention of those 
Avho studied it the most profoundly ; and better, if the latter were 
erroneous. 

The sailor, who started on a voyage before the constitution was 
framed, and did not return until after it was adopted, and knew 
nothing of the matter until it was all over, is, in law, as much a 
party to the constitution as any other person. He is presumed to 
have read it, to have understood its legal meaning, and to have 
agreed to that meaning, and that alone ; and his presumed intention 



226 RULES OF INTERPRETATION. 

is of as much importance as the actual intention of George Wash- 
ington, who presided over the convention that framed it, and took 
the first presidential oath to support it. It is of altogether more 
consequence than the intention of Washington, if Washington 
intended anything different from what the instrument, legally 
interpreted, expresses ; for, in that case, his intention would be of 
no legal consequence at all. 

Men's presumed intentions were all uniform, all certainly rights 
and all valid, because they corresponded precisely with what they 
said by the instrument itself; whereas their actual intentions were 
almost infinitely various, conflicting with each other, conflicting 
with what they said by the instrument, and therefore^pf no legal 
consequence or validity whatever. 

It is not the intentions men actually had, but the intentions they 
constitutionally expressed, that make up the constitution. And 
the instrument must stand, as expressing the intentions of the peo- 
ple, (whether it express them truly or not,) until the people either 
alter its language, or abolish the instrument. If " the people of 
the United States" do not like the constitution, they must alter, or 
abolish, instead of asking their courts to pervert it, else the consti- 
tution itself is no law. 

Finally. If we are bound to interpret the constitution by any 
rules-whatever, it is manifest that we are bound to do it by such 
rules as have now been laid down. If we are not bound to inter- 
pret it by any rules whatever, we are wholly without excuse for 
interpreting it in a manner to legalize slavery. Nothing can jus- 
tify such an interpretation but rules of too imperative a character 
to be evaded.* 

* Slori/ says, " In construing ihe conslitntion of the United States, we are, in the 
first instance, to consider what are its nature and objects, its scope and design, as 
apparent from the structure of the instrument, viewed as a whole, and also viewe(~! 
in its component parts. Where its words are plain, clear, and determinate, they 
require no interpretation ; and it shonld, therefore, be admitted, if at all, with greas 
caution, and only from necessity, either to escape some absurd consequence, or ti> 
guard against some fatal evil. Where the words admit of two senses, each of 
which is conformable to common usnere, that sense is to be adopted, lehich, without 
departing- from the literal import of the words, best harmonizes vrilh the nature 
and objects, the scape and designs, of the instnim.ent. Where the words are nnam- 
biguous, but the provision may cover more or less ground, according to the inten- 
tion, which is subject to conjecture ; or where it may include in its general terms more 
or less than might seem dictated by the general design, as that may be gathered 
from other parts of the instrument, there is much more room for controversy ; and,, 
the argument from inconvenience will probably have different infiuenres upon differ- 
ent minds. Whenever such questions arise, they will probably be settled, each 
upon its own peculiar grounds; aul whenever it is a question of power, it should 



RULES OF INTERPRETATION. 227 

be approached with infinite caution, und affirmed only upon the most persuasive 
reasons. In examining the constitution, the antecedent situation of the country, 
and its institutions, the existence and operations of the state governments, the 
powers and operations of the confederation, in short, all the circumstances which 
had a tendency to produce or to obstruct its formation and ratificiit ion, deserve a 
careful attention. Much, also, may he gathered from contemporary history, and 
contemporary interpretation, to aid us in just conclusions. 

" // is obvious, hoiccver, that contemporary interpvctaiion must be resorted to 
irith much qualification and reserve, hi the first place, the private interpretation 
of any particular man, or body of men, must manifestly be open to much observa- 
tion. The constitution was adopted by the people of the United States ; and it 
was submitted to the whole, upon a just survey of its provisions, as they stood in 
t!ie text itself. In difierent slates, and in different conventions, different and very 
nppo^^ite objections are known to have prevailed ; and might well be presumed to 
prevail. Opposite interpretations, and different explanations of difierent provisions, 
may well be presumed to have been presented in difierent bodies, to remove local 
objections, or to win local favor. And there can be no certainty, either that tlie 
different state conventions, in ratifying the constitution, gave the same uniform 
interpretation to its language, or that, even in a single state convention, the same 
reasoning prevailed, with a majority, much less with the whole, of the supporters 
of it. In the interpretation of a state statute, no man is insensible of the extreme 
danger of resorting to the opinions of those who framed it, or those who passed it. 
Its terms may have differently impressed different minds. Some may have implied 
limitations and objects, which others would have rejected. Some may have taken 
a cursory view of its enactments, and others have studied them with profound 
attention. Some may have been governed by a temporary interest or excitement, 
and have acted upon that exposition which most favored their present views. 
Others may have seen, lurking beneath its text, what commended it to their judg- 
ment, against even present interests. Some may have interpreted its language 
strictly and closely ; others, from a different habit of thinking, may have given it a 
large and liberal meaning. It is not to be presumed, that, even in the convention 
which framed the constitution, irom the causes above mentioned, and other causes, 
the clauses were always understood in the same sense, or had precisely the same 
extent of operation. Every member necessarily judged for himself; arid the 
judgment of no one could, or ought to be, conclusive upon thai of others. The 
known diversity of construction of difi^erent parts of it, as well as the mass of its 
powers, in the different state conventions ; the total silence upon many objections, 
which have since been started ; and the strong reliance upon others, which have 
since been universally abandoned, add weight to these suggestions. Nothing but 
the te.xt itself loas adopted by the people. And it would certainly be a most extrav- 
agant doctrine to give to any commentary then made, and, a fortiori, to any com- 
mentary since made under a very difierent posture of feeling and opinion, an 
authority which should operate an absolute limit upon the text, or should supersede 
its natural and just construction. 

".Contemporary construction is properly resorted to, to illustrate and confirm the 
text, to explain a doubtful phrase, or to expound an obscure clause ; and in propor- 
tion to the uniformity and universality of that construction, and the known ability 
and talents of those by whom it was given, is the credit to which it is entitled. 
It can never abrogate the text; it can never fritter away its obvious sense ; it can 
never narrow doicn its true limitations ; it can never enlarge its natural bounda- 
ries. We shall have abundant reason hereafter to observe, \vhen we enter upon the 
analysis of the particular clauses of the constitution, how many loose interpreta- 
tions and plausible conjectures were hazarded at an early period, which have since 
silently died away, and are now retained in no living memory, as a topic either of 



228 RULES OF INTERPRETATION. 

praise or blame, of alarm or of congratulation. — 1 Stortj's Com. on the Const, 
pp. 337 to 392. 

Story makes the following caustic comments upon Mr. Jefferson's rules of inter- 
pretation. They are particularly worthy the attention of those modern commenta- 
tors, who construe the constitution to make it sanction slavery. He says, — 

" Mr. Jefferson has laid down two rules, which he deems perfect canons for the 
interpretation of the constitution.* The first is, ' The capital and leading object 
of the constitution was, to leave with the spates all authorities which respected 
their own citizens only, and to transfer to the United States those which respected 
citizens of foreign or other states ; to make us several as to ourselves, but one as 
to all others. In the latter case, then, constructions should lean to the general 
jurisdiction, if the words will bear it ; and in favor of the states in the former, if 
possible to he so construed.' Now, the very theory on which this canon is found- 
ed, is contradicted by the provisions of the constitution itself. In many instances, 
authorities and powers are given, which respect citizens of the respective states, 
without reference to foreigners, or the citizens of other states. + But if this general 
tlieory were true, it would furnish no just rule of interpretation^ since a particular 
clause might form an exception to it ; and, indeed, every clause ought, at all events, 
to be construed according to its fair intent and objects, as disclosed in its language. 
What sort of rule is that, which, without regard to the intent or objects of a par- 
ticular clause, insists that it shall, if possible, (not if reasonable,) be construed in 
favor of the states, simply because it respects their citizens? The second canon 
is : ' On every question of construction (we should) carry ourselves back to the 
lime when the constitution was adopted ; recollect the spirit manifested in the 
dei)ates ; and instead of trjing what meaning maybe squeezed out of the text, 
or invented against it, conform to the probable one in which it was passed.' Now, 
who does not see the utter looser)ess and incoherence of this canon'.' How are we 
to know what was thought of particular clauses of the constitution at the time of 
its adoption ? In many cases, no printed debates give any account of any con- 
struction ; and where any is given, different persons held different doctrines. 
Whose is to prevail ? Besides, of all the state conventions, the debates of five 
only are preserved, and these very imperfectly. What is to be done as to the 
other eight states '? What is to be done as to the eleven new states, which have 
come into the Union under constructions, which have been established against 
what some persons may deem the meaning of the framers of it? How are we to 
arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madi- 
son, and Mr. Jay, tiie expounders in the Federalist, to be followed? Or are others 
of a different opinion to guide us? Are we to be governed by the opinions of a 
few, now dead, who have left them on record ? Or by those of a few, now living, 
simply because they were actors in those days, (constituting not one in a thousand 
of tiiose who were called to deliberate upon the constitution, and not one in ten 
thousand of tiiose who were in favor or against it, among the people) ? Or are we 
to be governed by the opinions of those who constituted a majoritj' of those who 
were called to act on that occasion, eithej as framers of, or voters upon, the constitu- 
tion? If by the latter, in what manner can we know those opinions? Are we to 
lie governed by the sense of a majority of a particular state, or of all of the United 
States? If so, how are we to ascertain what that sense was? Is the sen.^e of the 
constitution to be ascertained, not by its oxen text, but by the ' probable meaning,'' to 
be gathered by conjectures from scattered documents, from private papers, from the 
table-talk of some statesmen, or the jealous exaggerations of others 7 Is the con- 
stitution of the United States to be the only instrument, which is not to be intei'- 
preted by what is written, but by probable guesses, aside from the text? What 

* 4 Jefferson's Correspondence, 373, 391, 392, 396. 
t 4 Jefferson's Correspondence, 391, 392, 396. 



RULES OF INTERPRETATION. 229 

would he said of interpreting- a statute of a state leg-islature, by endeavoring- to 
find out, fromprivate sources, the objects and opinions of every member ; how every 
one thought ; ichat he wished ; how he interpreted it? Suppose different persons 
had different opinions, what is to he done? Suppose different persons are not 
agreed as to ' the probahle meaning' of the framers or of the people, what inter- 
pretation is to followed ? These, and many questions of the same sort, might he 
asked. // is obvious, that there can be no security to the people in any conslitution 
of government, if they are not to judge of it by the fair meaning of the icords of 
the text ; but the tcords are to be bent and broken by the 'probable meaning ' of 
persons, whom they never knexo, and whose opinions, and means of information, 
may be no belter than their own? The people adopted '.he constitution, according 
to the words of the text in their reasonable interpretation, and not according to the 
private interpretation of any particular men. The opinions of the latter may some- 
times aid us in arriving at just results, but they can never be conclusive. The 
Federalist denied that the president could remove a public officer without the con- 
sent of the senate. The first congress affirmed his right by a mere majority. 
Which is to be followed?"— 1 Story's Com. on Const., 390, 392, note. 

Story says, also, " Words, from the necessary imperfection of all human language, 
acquire different shades of meaning, each of which is equally appropriate, aud 
equally legitimate ; and each of which recedes in a wider or narrower degree from the 
others, according to circumstances ; and each of which receives from its general 
use some indefiniteness and obscurity, as to its exact boundary and extent. We 
are, indeed, often driven to multiply commentaries from the vagueness of words in 
themselves ; and, perhaps, still more often from the different manner in which 
different minds are accustomed to employ them. They expand or contract, not 
only from the conventional modifications introduced by the changes of society, but 
also from the more loose or more exact uses, to which men of different talents, 
acquirements, and tastes, from choice or necessity, apply them. No person can fail 
to remark the gradual deflections in the meaning of words, from one age to another, 
and so constantly is this process going on, that the daily language of life, in one 
generation, sometimes requires the aid of a glossary in another. It has been justly 
remarked, that no language is so copious, as to supply words and phrases for every 
complex idea ; or so correct, as not to include many equivocally denoting different 
ideas. Hence it must happen, that, however accurately objects may be discriminated 
in themselves, and however accurately the discrimination may be considered, the 
definition of them may be rendered inaccurate by the inaccuracy of the terms iu 
which it is delivered. If'e must resold, then, to the context, and shape the particu- 
lar meaning so as to make it ft that of the connecting words, and agree with the 
subject matter." — I Story's Com., 437. 

Ch. J. Marshall, speaking for the Sup. Court United States, says, " The spirit 
of an instrument, especially of a constitution, is to be respected not less than its 
letter, yet the spirit is to be collected chiefly from its words. It would be danger- 
ous in the extreme to infer from extrinsic circumstances, that a case for which the 
words of an instrument expressly provide, shall be exempted from its operation. 
Where words conflict with each other, where the different clauses of an instrument 
bear upon each other, and would be inconsistent unless the natural and common 
import of words be varied, construction becomes necessary, and a departure from 
the obvious meaning of words is justitialjle." — 4 VVheaton, 202. 

Ch. J. Taney, givmg the opinion of the Supreme Court of the United States, 
says, " In expounding this law, the judgment of the court cannot, in any degree, be 
influenced by the construction placed upon it by individual members of congress in 
the debate which took place on its passage, nor by the motives or reasons assigned 
by them for supporting or opposing amendments that were offered. The law, as it 
is passed, is the will of the majority of both houses, and the only mode iu which that 

20 



230 RULES OF INTERPRETATION. 

will is spoken, is in the act itself; and we must gather their intention from tho 
languag^e there used, comparing it, when any ambiguity exists, with the laws upon 
the same subject, and looking, if necessary, to the public history of the times in 
which it was passed." — 3 Howard, 24. 

Coke says, " The words of an act of parliament must be taken in a lawful and 
rightful sense." — Coke Lit., 331, h. 

Also, " The surest construction of a statute is by the rule and reason of the com- 
mon law." — Same, 272, b. 

"Acts of parliament are to be so construed as no man that is innocent, or free 
from injury or wrong, be by a literal construction punished or endamaged." — Same, 
360, a. 

" When the construction of any act is left to the law, the law, which abhorreth 
injury and wrong, will never so construe it, as it shall work a wrong." — Same, 
42, a. 

" It is a maxim in law, that the construction of a law shall not work an injury." 
Same, 133, a. 

" The rehearsal or preamble of the statute is a good mean to find out the meaning 
of the statute, and as it were a key to open the understanding thereof." — Same, 
79, a. 

" It is the most natural and genuine exposition of a statute to construe one part 
of the statute by another part of the same statute, for that best expresseth the 
meaning of the makers." — Same, 381, b. 

" If the words of a statute are obscure, they shall be expounded most strongly for 
the public good." — Plowden, 82. 

" It is most reasonable to expound the words which seem contrary to reason, 
according to good reason and equity." — Same, 109. 

" Such construction ought to be made of acts of parliament as may best stand 
with equity and reason, and mostly avoid rigor and mischief." — Same, 364. 

" The judges took the common law for their guide, which is a master in exposi- 
tion, the reason whereof they pursued as near as they could." — Same, 364. 

" Words of a statute ought not to be interpreted to destroy natural justice." — 
Viner's Ahridg. Consir. of Stat., sec. 156. 

Blackstone's rules of interpretation are as follows : 

" The fairest and most rational method to interpret the will of the legislator, is by 
exploring his intentions at the time when the law was made, by signs the most 
natural and probable. And these signs are either the words, the context, the sub- 
ject matter, the efiects and consequence, or <he spirit or reason of the law. Let 
us take a view of them all. 

"1. Words are genera//;/ to be understood in their usual and most known sig- 
nifications ; not so much regarding the propriety of grammar as their general and 
popular use." * * * 

"Terms of art, or technical terms, must be taken according to the acceptation 
of the learned in each art, trade, or science." * * * 

"2. If words happen to be still dubious, we may establish their meaning by the 
context; with which it may be of singular use to compare a word or sentence, 
whenever they are ambiguous, equivocal, or intricate. Thus the proem, or pream- 
ble, is often called in to help the construction of an act of parliament." * * * 

" 3. As to the subject matter, words are always to be understood as having regard 
thereto; for that is always supposed to be in the eye of the legislator, and all his 
expressions directed to that end." * * * 

"4. As to the effects and consequence, the rule is, that where words bear eithei 
aone, or a very abstird signification, if literally understood, we must a little deviate 
from the received sense of them." * * * 

"6. But lastly, the most universal and efiectual way of discerning the true mean 



JnJl.ES OF INTERPRETATION, 231 

itg of a law, where the words are d«li»ous, is by oonsidering the reason and spirit 
of it; or the caus« which moved the legislator to «nact it. For wlieii this reason 
ceases, the law itself ought likewise iocease with it," * * * — I Blackstoiie, 5% 
€0. . 

Blackstimc {1, S9) also lays it down as being '■ Contrary to all true ,/w-ms oj 
■reasoning, to arguc^from pairtkulars tc genera/s," Yet tllis is the unicersaJ mod* 
•of reasoning amnng tlwse who hold slavery te be conslitutionaL Instead of i'eason- 
ing fpstn generals to particukrs, they reason from particulars to generals. For 
«xanjpl«. I«sti3ad of Judjjing ef the word " free" by referei>ce to tlie rest of Itw 
instretnent, they judge ef the whole iRstrumcRt by reference to tl>e word "free." 
They first fix the nicaniiig of the word " free," bj' assuming for it, in defiaiK* of 
ithe rest «f the iBslrtimeTst, and of -all legal roles, the wor.< possible nieaniMg of 
which it is -capable, siaiplyon the illegal grounds that the slaveholders canix)t be 
presumed to Iwve l)eeti willing to do justice, bKl titat all tl>e rest of tlie countrj' -can 
9)6 presomed willing to do injustice ; and tliey then limit, bend, and bi-eak all the 
Test of the instruincnt tnnsvake it <!OiiK>rm to that meaning. It is only by such 
process t»s this ihat the consLitulioii is ever ma.de to sanction siaverj-. 

" The const ituti OH is law, 'ike peojAe having been thedcgielaJors. And the sev- 
■eral statutes <if tlte ctTnumonweahh, enacted pursuant to ibe-coustitution, are law, 
3he senators a.Tid Tepii^senlalives lieing the legisUitors. Bufiiie provisions of the 
constitution, and of any statute, are tl»e intentioES -of tlie legislature liiepeby uiaui- 
iested. lliesc inleniions are to be aeocrtained by a reasonable consi-ruction^ resiiH- 
ing from, the apfAicaiian af correct maxims, generally acknowledged and received. 

" Two -of tlKse mnxiuns we will mention- That the nat-ural impoirl of the words 
of any legislative act, according to the oomwion use of them, when applied to the 
■subject matter tsf the act, is to be considered as-es;pressing the intentiv>u of tlie leg- 
islature unless the intention, soresuhing from the ordinary import «f the words, 
be repugnant le souKd, acknowkdgeii principles of national policy. And if thai 
intCRtioR be i^pugnant to s«ch priiKiples of iratienal policy, tlrcn tlie import of the 
"words ought to t>e enlarged <tT restrained, so tliat it n«y co?.Bjjer{ with tlK>se prin- 
ciples; unless the iirtention ©f the legislature l>e clearly and manifes-tly repugnant 
ito theai." — Opinion, of ike Justices, Parsens, SeicafL, and Parker, jMass.^ 524. 

Chief Justice Parker says, "I have -alw^iys understood tlrat it was right and 
proper to consider the whole of a statute, and the presnilile,and the ppobaJrle inteu- 
aioaof the legislalur-e, in Rrder to ascertain the meaning of any particular section; 
and that this fliode of interpreiatio?! is justifiable, ■even where tl>e words of tlie 
section itself may be unanahiguous. Cei-iainly if &ne sccti<3H, hotcever explicii its 
terms, ij taken liteirolly^ iceald 'Contropene ike general object efihe siatuic, ii should 
■he restrained so as io osnfarm to thai object.''^ — I Pickering, 258. 

" It is unquestionably a well-settled rule of construction, tliat v/heti words are 
Slot precise and clear, ssach construction will be adopted as shall aj)pear most rea- 
sonable, and best suited toa«omplish the objects of tlie statute ; and where any 
particular corrstTuct ion wculd lead to an abs<.ird cmtseqiverjce, it will be presumed 
Shat some exception or qualification was inaended Jiy th« legisiatiwe, to avoid such 
a cottclttsion." — -24 Pickering, 379. 

" WlientheineaniHg of any particular section w clause «f a statute is questioned, 
lit is pa-sper, no doubt, to look into the other parts of the statute ; otherwise the 
■different sections of tl»e sanre statute iKight be so construed as to be repugnant, and 
Jhe iivtewtion of the legislat<ire might \>e defeated. And if, upon examinatioii, the 
general meaning s.nd object of the statute should be found iiKoitsistent with the 
iitenaH im^jort of any particular clause or section, such clause or section must, if 
jJOSsiMe, be cotistraed according to the spirit of the act." — 1 Pickering, 25G. 

The Soprenie Court of the United States say, " It is undoubtedly a well-established 
principl-e ia the expositioii of s).atotes, thai eveiy part is lo be ooDsidered, and lb* 



232 RULES OF INTERPRETATION. 

intention of the legislature to be extracted from the whole. It is also tro3 that 
where great inconvenience will result from a particular construction, that coastruc- 
tion is to lie avoided ; unless the meaning of the legislature be plain, in which case 
it must be obeyed." — 2 Crunch, 358. 

'■ When the words are not explicit, the intention is to be collected from the con- 
text, from the occasion and necessity of tlie law, from the mischief felt, and the 
remedy in view; and the intention is to be taken or presumed, according to what 
is consonant to reason and good discretion. These rules, by which the sages of 
the law, according to Plowden, have ever beeif guided in seeking lor the intention 
of the legislature, are maxims of sound interpretation, whicli have been accumu- 
lated by the experience, and ratified by the wisdom of ages." — -1 Kent, 61. 

Kent declares the rule of tbe English courts to be this : " They will not readily 
presume, out of respect and dwty to the lawgiver, that any very v.njusi or absurd 
consequence was within the contemplation of the law. Bat if it should be too 
palpable in its direction to admit of but one construction, there is no doubt, ill the 
English law, as to the binding efficacy of the statute." — 1 Kent, 44". 

This rule implies that if a statute be susceptible of more than " one eoristruetion," 
the just or reasonable one must be preferred to " any very unjust or absurd one." 

KeiU also says, "Statutes are likewise to be ooastrued in reference to the princi- 
ples of the common law;" (which, in vol. 1, p. 470, he describes as being, in great 
part, but "the dictates of natural justice and cultivated reason}") " for it is not to. 
be presumed the legislature intended to make any innovation upon tbe common 
law, further than the case absolutely required. This has been the language of the 
courts in every age, and when we consider the constant, vehement, and exalted 
eulogy which the ancient sages bestowed upon the common law, as the perfection 
of reason, and lite best liirthright and noisiest inheritance of the subject, we cannot 
be surprised at the great sanctioji given to this rule of construction," — 1 itew7,463. 

Rutherforlh says, " All civil laws, and all contracts in general, a^re t© be so con- 
strued, where the words are of doubtful meaning, as to make them produce no other 
effect but wliat is consistent with reason, or with the law o:f nature." — B. 2, ch. 7, 
p. 327. 

" Lonl Coke has laid it down as a general rule, that where words may have a 
double intendment, and the one slandelh with law and right, and the other is 
wrongful and against law, the intendinei>t which standeth with law shall be taken." 

— Co. Lit., 42, a. 6, 18.3, a. Cited also in Pothier. 

" When the terms of a contract are capable of two- significatiens, we ought t(» 
understand them in the sense whidi is most agreeable to- the nature of the contract." 

— Pothier on Contracts, part 1, ch. 1, art. 7, rule 3. 

The Supreme Court of the United States say, " An act of congress eughti never to 
be construed to violate the law of nations," (or the law of natwre, they might have 
said, for the same reason, for the two are substantially synonymous in prineiple,) 
*' if any olher possible construction remains." — 2 Craneh, 64. 

Parsons, Chief Justice, says, " It is always to be presumed that the legislaturi? 
intend the most beneficial construction of ih^ir acts, when the design of them ia 
not apparent." — 4 Mass., 537. 

" Statutes are not to be coiistmed as taking away a common law right, unless the 
intention is manifest." — 4 Mass., 473. 

" It is an established rule, that a statute is not to be construed so as to repeal 
the common law, anless the intent to alter it is clearly expressed." — 9 Pickerings 
514. 

" Laws are construed strictly to save a right, or avoid a penalty ; and liberally 
to give a remedy, or elTecl an object declared in the law." — 1 Baldiein, 316. 

" Statutes are expounded by the rules and reasons of the common law ; and 
though the words of a statute be general, yet they shall be specially construed tfs 
avoid an apparent injury." — 6 Dane^ 588. 



RULES OF INTERPRETATION. 233 

"This policy, founded in manifest justice, ought to be enforced in this case, if 
the several laws in the statute-boolv, or any one of them, will admit of a reasonable 
construction to this effect." — 14 Mass., 92. 

" No statute ought to be so construed as to defeat its own end ; nor so as to 
operate against reason ; nor so as to punish or damnify the innocent ; nor so as to 
delay justice." — 6 Dane, 596. 

" The best construction of a statute is to construe it as near to the rule and rea- 
son of the conmion law as may he, and by the course which that observes in other 
cases." — Bacon's Abr. Slal., I. 32. 

Lord Coke, cited by Chief Justice Abbott, says, " Acts of parliament are to be so 
coustrued, as no man that is innocent, or free from injury, or wrong, be by a literal 
construction punished or endamaged." — 3 Barmccll tf* A. 271. 

" When any words or expressions in a writing are of doubtful meaning, the first 
rule in mixed interpretation is to give them such a sense as is agreeai)le to the 
subject matter of which the writer is treating. For we are sure ou the one hand 
that this subject matter was in his mind, and can on the other hand have no reason 
for thinking that he intended anything which is different from it, and much less 
that he intended anything which is inconsistent with it." — Rutherforth, b. 2, ck. 
7, p. 323. 

" The interpretation or construction of the constitution is as much a judicial act, 
and requires the exercise of the same legal discretion, as the interpretation of a 
law." — 1 Xe?7/, 449. 

" But we should particularly regard the famous distinction of things favorable, 
and things odious." — Valtel, B. 2, ch. 17, sec. 300. 

" The precise point of ihc will of the legislature, or of the contracting powers, is 
what ought to be followed ; but if their expressions are indeterminate, vague, or sus- 
ceptible of a more or less extensive sense, — if this precise point of their intention 
in the particular case in question cannot be discovered and fixed, by other-.rules of 
interpretation, it should be presumed, according to the laws of reason and equity." 
— Same. 

" All the thmgs which, withovt loo much bxirfhenivg any ove person in particular, 
are useful and salutary to human society, ought to be reckoned, among the favor- 
able things. For a nation is already under a natural obligation with respect to 
things of this nature ; so if it has in this respect entered into any particular en- 
gagements, we run no risk in giving these engagements the most extensive sense 
they are capable of receiving. Can we be afraid of doing violence to equity by 
following the law of nature, and in giving the utmost extent to obligations that are 
for the common advantage of mankind ? Besides, things useful to human society, 
on this account, tend to the common advantage of the contracting powers, and are 
consequently favorable. Let us, on the contrary, consider as odious everything that, 
in its own nature, is rather hurtful than of use to the human race." — Same, sec. 
302. 

" When the legislature, or the contracting powers, have not expressed their will 
in terms that are precise and perfectly determinate, it is to be presumed that they 
desire what is most equitable." — Same, sec. 307. 

" We favor equity, and fly from what is odious, so far as that may be done with- 
out going directly contrary to the tenor of the writing, and without doing violence 
to terms." — Saine, sec. 308. 



Assuming that the preceding principles of interpretation are correct, it may be 
allowable, on account of the importance of the subject, and the contrary opinions 
•which appear to prevail, to apply them to another clause of the constitution than 
those claimed for slavery. 

20=* 



RULES OF INTERPRETATION. 

The constitution declares that "the coxigress shall have power to declare rear." 

This power, unqualified in its terms, would, if taken literally, and independently 
uf the declared ohjects of this and all the other powers granted to the government, 
give congress authority to declare war for any cause whatever, just or unjust, for 
reasons the most frivolous and wicked, as well as for the most important and 
necessary purposes of self-preservation. Yet such is not the power that is actually 
granted. All the principles of interpretation before laid down, requiring a construc- 
tion consistent with justice, and prohiiiitiiig the contrary, limit this power to cases 
of just war ; war that is necessary for the defence and enforcement of rights. 

The objects of the powers granted to congress are " to establish justice," " secure 
liberty," " procide for the common defence," t^c. ; and the powers are to he con- 
strued with reference to the accomplishment of these objects, and are limited by 
them. Congress, therefore, have no constitutional authority to make wars of 
aggression and conquest. And all acts of congress, of that nature, are unconsti- 
tutional. 

Law-books abound with cases in wnich general words are restrained to such par- 
ticular meanings as are consistent with justice and reason. And the rule is well 
established that general words are always to be thus restrained, unless there be 
something in the context to forbid it. 

" A thing which is within the letter of the statute is not within the statute, 
unless it be within the intention of the makers." — 15 Johnson, 331 ; 3 Cowen, 92 ; 
1 Blackstone, 60-61 ; 3 Mass., 540 ; 5 Mass., 382 ; 15 Mass., 206 ; Bac. Abr. Stat, 
I., 45. 

Was it the intent of " the people of the United States" to authorize their gov- 
erimient to make wars of aggression and conquest? Their intention must be 
collected from their words, but their words must always be taken in a sense con- 
sistent with justice, and in no other, if the words are capable of a just meaning. 
" War ".anay be made for just, and for unjust purposes. But as two conflicting 
intentions cannot be attributed to the same provision, the just intention must be 
preferred to the unjust one. The preamble, also, as we have seen, shows the object 
of this power to be " to secure liberty," and " provide for the common defence." A 
good object, and a sufficient object, being thus apparent, and being also specially 
declared in the preamble, no other can be attributed, and the power is consequently 
limited to that object.* 

Plowden says, " And the judges of the law in all times past have so far pursued 
the intent of the makers of statutes, that they have expounded acts, which were 
general in words, to be but particular, when the intent was particular." — Plow- 
den, 204. 

Vattel says, " We limit a law or a promise contrary to the literal signification of 
the terms, by regulating our judgment by the reason of that law, or that promise." 
— Vattel, B. 2, ch. 17, sec. 292. 

Also, " The restrictive interpretation takes place, when a case is presented in 
which the law or the treaty, according to the rigor of the terms, lead to something 
unlawful. This exception must then be made, since nobody can promise or ordain 
what is unlawful. For this reason, though assistance has been promised to au 
ally in all his wars, no assistance ought to be given hiin when he undertakes one 
that is manifestly unjust." — Same, sec. 293. 

Also, " We should, in relation to things odious," (that is, " everything that in its 
own nature is rather hurtful than of use to the human race,") "take the terms in 
the most confined sense." — Same, sec. 308. 

The Supreme Court of the United States, also, say, " An act of congress," (and 

* Story says, " The true office of the preamble is to expound the nature, and extent, and 
application of the powers actually conferred by the constitution." — 1 Story's Com. on 
Const., 445. 



RULES OF INTERPRETATION. 235 

the same reason applies to the constitution,) " ought never to be construed to violate 
the law of nations, if any other poss/Wc construction remains." — 2 Crunch, 64. 

To understand the force of this last rule, some definition of the law of nations is 
necessary. The best general definition of it is, that which considers nations as 
individuals, and then applies the same principles of natural law to them, that are 
applicable to individuals. This rule, however, requires to be modified by being 
made more lenient to nations, in certain cases, than to individuals. For example ; 
the whole people of a nation are not to have war made upon them, for wrongs 
done by their government, any sooner or further than is necessary to compel them 
to redress those wrongs as soon as, in the nature of things, they (the people) can 
do it, by changing, or operating upon their government. The reasons are these: 
The people, by instituting government, or appointing certain individuals to admin- 
ister it, do not authorize those individuals to commit any wrongs against foreign 
nations. They are not, therefore, themselves culpable for those wrongs. When, 
then, such wrongs are committed, all that the people can be required to do, is thai 
they dismiss the wrong doers from power, and appoint others who will redress the 
injuries committed. And to do this, the people must be allowed such time as is 
reasonable and necessary, which will be more or less, according to circumstances. 
But ample time must be sure to be allowed in all cases, before war against them 
can be lawful. 

2. In controversies as to their respective rights and wrongs, nations are each 
entitled to longer time for investigating and determining their rights than individ- 
uals, because it is not in the nature of things possible that a whole people can 
investigate such questions with the same promptness that individuals can investi- 
gate their respective rights in their private controversies ; and a whole people are 
not to he held liable, by having war made upon them, until they have had ample, 
or, at least, reasonable, time to investigate the matters in controversy. 

3. Nations are entitled to longer delays for fulfilling their contracts, paying theii 
debts, &c., than individuals, because governments, no more than individuals, can 
be required to perform impossibilities, and a government's means of paying its 
debts must be obtained by systematic processes of taxation, which require a longer 
or shorter time, according to the wealth and resources of the country. 

4. But another reason why greater forbearance is due to nations than to individ- 
uals, is, that it generally happens that a part only of a nation are disposed to with- 
hold justice, while the rest are willing to do it. Yet if the nation, as a whole, 
were held responsible to the same rigid rules as an individual, by having war 
declared on the first want of promptitude in fulfilling their duty, the innocent 
would be involved in the same punishment with the guilty. 

For all these reasons, and some others, great lenity and forbearance in the 
enforcement of rights is demanded by the law of nations, or by the natural law 
applicable to nations. 

To apply the foregoing principles: If the war in which the United States are 
now engaged with Mexico, be one, not of defence, but of aggression, on their part, 
or be made in violation of natural law, it is unconstitutional, and all proceedings 
had in the prosecution of it are illegal. The enlistments of soldiers for that service 
are illegal ; and the soldiers are not bound by their enlistments. The soldiers 
legally owe no obedience to their officers. The officers have no legal authority 
over their soldiers. The oaths of the officers to obey the laws of the United States, 
while they are in the territory of Mexico, are of no legal obligation. And the offi- 
cers and soldiers, while in Mexico, are in no way legally amenable to the govern- 
ment or laws of the United States for their conduct. They owe no legal obedience 
to the orders of the president. They are, in the eye of our own law, mere banditti. 
They may throw off all allegiance to the government of the United Stales, turn 
conquerors on their own account, and it will be no offence against the laws of tb« 



836 RULES OF INTERPRETATION. 

United States. The appropriations for carrying on the war in Mexico are illegal, 
and might, with as much constitutional authority, be made to Mexican brigands, as 
to our own soldiers. Finally, our soldiers are hound to know our own constitutional 
law on this point, and to know that they are acting without legal authority. They 
are, therefore, not entitled to the rights of prisoners of war, in case they should fall 
into the hands of the Mexican government, hut are liable to be treated as robbers 
and murderers ; and our government, in such an event, would have no constitutional 
right to protect them, by force, from their liability to Mexican laws, for all the 
crimes they are now committing. 



SERVANTS COUNTED AS UNITS. 237 



CHAPTER XVIII. 

SERVANTS COUNTED AS UNITS. 

The constitution (Art. 1, Sec. 2) requires that the popular basis 
of representation and taxation be made up as follows, to wit : 

" By adding to the whole number oi free persons, including 
those bound to service for a term of years, and excluding Indians 
not taxed, three fifths of all other persons." 

If the word free, in this clause, be used as the correlative of 
slaves, and the words " all other persons" mean slaves, the words 
" including those bound to service for a term of years" are sheer 
surplusage, having no legal force or effect whatever ; for the per- 
sons described by them would of course have been counted with 
the free persons, without the 'provision. If the word free were 
used as the correlative of slaves at all, it was used as the correla- 
tive of slaves alone, and not also of servants for a term of years, 
nor of prisoners, nor of minors under the control of their parents, 
nor of persons under any other kind of restraint whatever, than 
the simple one of chattel slavery.^ 

It was, therefore, wholly needless to say that " persons bound to 
service for a term of years " should not be counted in the class 
with slaves, for nobody, who understood the word free as the cor- 
relative of slaves, would have imagined that servants for a term 
of years were to be included in the class with slaves. There 
would have been nearly or quite as much reason in saying that 
minors under the control of their parents, persons under guardian- 
ship, prisoners for debt, prisoners for crime, &c., should not be 
counted in the class with slaves, as there was in saying that ser- 
vants for a term of years should not be counted in that class. In 
fact, the whole effect of the provision, if it have any, on the slave 
hypothesis, is to imply that all other persons under restraint, except 



* If the word free were used as the correlative of any other kinds of restraint 
than slavery, it would not have implied slavery as its correlative, and there would 
have been no ground for the argument for slavery. On the other hand, if it were 
used as the correlative of slavery, there was no need of specially excepting from 
the implication of slavery " those hound to service for a term of years," for they 
were known by everybody not to be slaves. 



238 THE UNCONSTITUTIONALITY OF SLAVERY. 

" those bound to service for a term of years," shall be counted in 
the class with slaves ; because an exception of particular persons 
strengthens the rule against all persons not excepted. So that, on 
the slave hypothesis, the provision would not only be unnecessary 
in favor of the persons it describes, but it would even be dangerous 
in its implications against persons not included in it. 

But we are not allowed to consider these words even as sur- 
plusage, if any reasonable and legal effect can be given them. 
And under the alien hypothesis they have such an effect. 

Of the " persons bound to service for a term of years " in those 
days, large numbers were aliens, who, but for this provision, would 
be counted in the three fifths class. There was, nevertheless, a 
sound reason why they should be distinguished from other aliens, 
and be counted as units, and that was, that they were bound to the 
country for a term of years as laborers, and could not, like other 
aliens, be considered either a transient, unproductive, or uncertain 
population. Their being bound to the country for a term of years 
as laborers, was, to all practical purposes, equivalent to naturaliza- 
tion ; for there was little or no prospect that such persons would 
ever leave the country afterwards, or that, during their service, 
they would recognize the obligations of any foreign allegiance. 

On the alien hypothesis, then, the words have an effect, and a 
reasonable one. On the slave hypothesis, they either have no 
effect at all, or one adverse to all persons whatsoever that are under 
any kind of restraint, except servants for a term of years. 



CHAPTER XIX. 

SLAVE REPRESENTATION. 

The injustice to the North that is involved in allowing slaves, 
who can have no rights in the government, who can owe it no 
allegiance, toho are necessarily its enemies, and who therefore 
weaken, instead of supporting it — the injustice and inequality of 
allowing such persons to be represented at all in competition with 
those who alone have rights in the government, and who alone 
support it, is so palpable and monstrous, as utterly to forbid any 
such construction being put upon language that does not necessa- 
rily mean it. The absurdity, also, of such a representation, is, if 
possible, equal to its injustice. We have no right — legal rules, that 



I 



SLAVE REPRESENTATION. 239 

are universally acknowledged, imperatively forbid us — unneces- 
sarily to place upon the language of an instrument a construction, 
that either stultifies the parties to it to such a degree as the slave 
construction does the people of the North, or that makes them con- 
sent to having such glaring and outrageous injustice practised 
upon them. 

But it vi^ill be said in reply to these arguments, that, as a com- 
pensation to the North for the injustice of slave representation, all 
direct taxes are to be based on population ; that slaves are to be 
counted as three fifths citizens, in the apportionment of those 
taxes ; and that the injustice of the representation being thus 
compensated for, by a corresponding taxation, its absurdity is re- 
moved. 

But this reply is a mere assti?fjption of the fact that the consti- 
tution authorizes slave taxation ; a fact, that, instead of being 
assumed, stands only on the same evidence as does the slave rep- 
resentation, and therefore as much requires to be proved by addi- 
tional evidence, as does the representation itself. The reply admits 
that the slave representation is so groundless, absurd, unequal, and 
unjust, that it would not be allowable to put that construction upon 
the clause, if it had provided only for representation. Yet it at- 
tempts to support the construction by alleging, without any addi- 
tional evidence, that the direct taxation, (if there should ever be 
any direct taxation,) was to be on the same absurd principle. But 
this is no answer to the objection. It only fortifies it ; for it ac- 
cuses the constitution of two absurdities, instead of one, and does 
it upon evidence that is admitted to be insufficient to sustain even 
one. And the argument for slavery does, in reality, accuse the 
constitution of these two absurdities, without bringing sufficient 
evidence to prove either of them. Not having sufficient evidence 
to prove either of these absurdities, independently of the other, it 
next attempts to make each absurdity prove the other. But two 
legal absurdities, that are proved only by each other, are not proved 
at all. And thus this whole fabric of slave representation and 
slave taxation falls to the ground. 

Undoubtedly, if the clause authorizes slave representation, it 
also authorizes slave taxation ; or if it authorizes slave taxation, it 
undoubtedly authorizes slave representation. But the first question 
to be settled is, whether it authorizes either ? And this certain.y 
is not to be answered in the affirmative, by simply saying that, if 
it authorizes one, it authorizes the other. 



240 THE UNCONSTITUTIONALITY OF SLAVERY. 

If any one wishes to prove that the clause authorizes slave 
representation, he must first prove that point independently of the 
taxation, and then he may use the representation to prove the tax- 
ation ; or else he must first prove the slave taxation, and then he 
may use the taxation to prove the representation. But he cannot 
use either to prove the other, until he has first proved one inde- 
pendently of the other ; a thing which probably nobody will ever 
undertake to do. No one certainly will ever undertake to prove 
the representation independently of the taxation ; and it is doubtful 
whether any one will ever undertake to prove the taxation, inde- 
pendently of the representation. The absurdity and incongruity of 
reckoning one single kind of property as persons, in a government 
and system of taxation founded on persons, are as great as would 
be that of valuing one single class of persons as property, in a 
government and system of taxation founded on properly. The 
absurdity and incongruity in each case would be too great to be 
allowable, if the language would admit, (as in this case it does 
admit,) of another and reasonable construction. 

Nevertheless, if any one should think that this slave taxation is 
not a thing so absurd or unjust as to forbid that construction, still, 
the fact that, if that construction be established, the absurd and 
unjust representation will follow as a consequence from it, is a 
sufficient reason why it cannot be adopted. For we are bound to 
make the entire clause harmonious with itself, if possible ; and, in 
doing so, we are bound to make it reasonable throughout, if that 
be. possible, rather than absurd throughout. 

I have thus far admitted, for the sake of the argument, the 
common idea, that the taxation, which the slave construction of 
this clause would provide for, would be some compensation to the 
North, for the slave representation. But, in point of fact, it would 
not necessarily be any compensation at all ; for it is only direct 
taxes that are to be apportioned in this manner, and the government 
is not required to lay direct taxes at all. Indeed, this same unjust 
representation, which it is claimed that the clause authorizes, may 
be used to defeat the very taxation which it is said was allowed as 
an equivalent for it. So that, according to the slave argument, 
the unjust representation is made certain, while the compensating 
taxation is made contingent ; and net only contingent, but very 
likely contingent upon the will of the unjust representation itself. 
Here, then, are another manifest and gross absurdity and injustice, 
which the slave construction is bound to overcome, before it can be 
adopted. 



SLAVE REPRESENTATION. . 241 

But suppose tne taxation had been made certain, so as to cor- 
respond with, and compensate for, the representation — what then? 
The purport of the clause would then have been, that the North 
said to the South, " We will suffer you to goverii us, (by means 
of an unequal representation,) if you will pay such a portion, 
(about one sixth,) of our taxes." Certainly no construction, unless 
an unavoidable one, is allowable, that would fasten upon the people 
of the north the baseness and the infamy of having thus bargained 
away their equal political power for money ; of having sold their 
freedom for a price. But when it is considered how paltry this 
price was, and that its payment was not even guarantied, or likely 
ever to be made, such a construction of the contract would make 
the people of the North as weak and foolish, as infamous and 
despicable. Is there a man in the whole northern states, that 
would now consent to such a contract for himself and his children ? 
No. What right, then, have we to accuse all our fathers, (fathers 
too who had proved their appreciation of liberty by risking life 
and fortune in its defence,) of doing what no?ie of us would do ? 
No legal rules of interpretation, that were ever known to any 
decent tribunal, authorize us to put such a construction upon their 
instrument as no reasonable and honorable man would ever have 
agreed to. There never lived a man in the northern states, who 
• would have consented to such a contract, unless bribed or moved 
to it by some motive beyond his proportionate share in such a 
price. Yet this price is all the motive that can be legally assigned 
for such a contract ; for the general benefits of the Union must be 
presumed to have been equal to each party. If any difference 
were allowable in this respect, it must have been in favor of the 
North, for the South were the weaker party, and needed union much 
more than the north. 

This question has thus far been treated as if the South had 
really made some pretence, at least, of paying more than her share 
of taxation. But this is by no means the true mode of presenting 
the question ; because these persons, it must be remembered, 
whom it is claimed were to be represented and taxed only as three 
fifths of a person each, were legally free by the then existing State 
constitutions ; and, therefore, instead of being slaves, not entitled 
to be represented or taxed at all as persons, were really entitled 
to be represented, and liable to be taxed, as units, equally with the 
other people of the United States. All this the North must be 
•presumed to have known. The true mode of presenting the ques- 

21 



242 THE TJNCONSTlTtTTIONALITY OF SLAVEKT, 

tion, therefore, is this, viz., 1. Whether the South, for the privileg"© 
of enslaving a portion of her people, of holding ihem in slavery 
under the protection of the North, and of saving two fifths of her 
direct taxation upon them, agreed to surrender two fifths of her 
representation on all she should enslave ? and, 2. Whether the 
North, in order to secure to herself a superiority of representation ^ 
consented to the enslavement of a portion of the Southern people, 
guarantied their subjection, and agreed to abate two fifths of the 
direct taxation on every individual enslaved ? This is the true 
mode of presenting the subject ; and the slave construction of the 
clause answers these questions in the affirmative. It makes the 
North to have purchased for herself a superior representation, and 
to hav^e paid a bounty on slavery, by remitting taxes to which the 
South would have been otherwise liable ; and it makes the South 
to have bartered away her equal representation, her equal political 
power — makes her, in fact, to have sold her own liberties to the 
North, for a pitiful amount of taxation, and the privilege of enslav- 
ing a part of her own people. 

Such is the contract — infamous on the part of both North and 
South, and base, suicidal, and servile on the part of the South — 
which the slave construction would make out of this provision of 
the constitution. Such a contract cannot be charged upon political 
communities, unless it be " expressed with irresistible clearness."* 
Much less can it be done on the evidence of language, which 
equally well admits of a construction that is rational, honorable, 
and innocent, on the part of both. 

The construction which legal rules require, to wit, that " free 
persons" mean the citizens, and "all other persons" the aliens, 
avoids all these obstacles in the way of making this clause an 
honorable, equal, and reasonable contract. 



CHAPTER XX. 

WHY ALIENS ARE COUNTED AS "THREE FIFTHS." 

There are both justice and reason in a partial representation, 
and a partial taxation, of aliens. They are protected by our laws, 
and should pay for that protection. But as they are not allowed 
the full privileges of citizens, they should not pay an equal tax 
with the citizens. They contribute to the strength and resources 



WHY ALIENS ARE COUNTED AS " riir.EE FIFTHS." 243 

of the government, and therefore they should be represented. But 
as they are not sufficiently acquainted with our system of govern- 
ment, and as their allegiance is not made sufficiently sure, they 
are not entitled to an equal voice with the citizens, especially if 
they are not equally taxed. 

But it has been argued* that aliens were likely to be in about 
equal numbers in all the States, in proportion to the citizens ; and 
that therefore no great inequality would have occurred, if no sep- 
arate account had been taken of them. But it is not true that 
aliens were likely to be in equal numbers in the several States in 
proportion to the citizens. Those States whose lands were already 
occupied, like Connecticut, Rhode Island, and Massachusetts, (ex- 
clusive of Maine,) and who could not expect to retain even so much 
as their natural increase of population, could not expect to receive 
the same additions to it by the immigration of foreigners as New 
York, Pennsylvania, and other States, that still had immense bodies 
of unoccupied lands. And .none of the old thirteen States could 
expect long to have the same proportion of aliens as the new States 
that were to be opened in the west. And 3ven those new Slates, 
that were then about to be opened, would soon become old, and 
filled with citizens, compared with other States that were to be 
successively opened still further west. 

This inequality in the proportion of aliens in the respective States, 
was then, and still is, likely to be for centuries an important polit- 
ical element; and it would have been weak, imprudent, short- 
sighted, and inconsistent with the prevailing notions of that time, of 
all previous time, and of the present time, for the constitution to 
have made no provision in regard to it. And yet, on the slave 
hypothesis, the constitution is to be accused of all this weakness, 
imprudence, short-sightedness, and inconsistency; and, v/hal is 
equally inadmissible, is to be denied all the credit of the inten- 
tions, which, on the alien hypothesis, the clause expresses; inten- 
tions, the wisdom, justice, and liberality of which are probably 
more conspicuous, and more harmoniously blended, than in any 
other provision in regard to aliens, that any nation on earth ever 
established, before or since. 

It is as unnatural and absurd, in the interpretation of an instru- 
ment, to withhold the credit of wise and good intentions, where the 
language indicates them, as it is to attribute bad or foolish ones, 



* By Wendell Phillips. 



244 TTNCONSTITUTIONALITY OF SLAVERY. 

where the language does not indicate them. And hence the posi- 
tive merits of this clause, on the alien hypothesis, are entitled to 
the highest consideration ; and are moreover to be contrasted with 
its infamous demerits, on the slave hypothesis. 

The prepeding view of this clause is strongly confinned by other 
parts of the constitution. For example : The constitution allows 
aliens, equally with the citizens, to vote directly in the choice of 
representatives to congress, and indirectly for senators and presi- 
dent, if such be the pleasure of the State governments.* Yet they 
are not themselves eligible to these three offices, although they are 
eligible to all other offices whatsoever under the constitution.! All 
that is required of them is simply the official oath to support the 
constitution ; the same oath that is required of citizens. 

Again. The constitution of the United States lays no restraint 
upon their holding, devising, and inheriting real estate, if such 
should be the pleasure of the State governments. And in many, 
if not all, the States, they are allowed to hold, devise, and inherit it. 

Now the facts, that they are not restrained by the constitution 
from holding, devising, and inheriting real estate; that they have 
the permission of the constitution to vote, (if the State governments 
shall please to allow them to do so ;) and that they are eligible to 
a part of the offices, hit not to all, show that the constitution 
regards them 7iot as aliens, in the technical sense of that term,t but 
as partial citizens. They indicate that the constitution intended 
to be consistent with itself throughout, and to consider them, in 
reality, what this argument claims that it considers them in respect 
of representation and taxation, viz., as three fifths citizens. 

The same reason that would induce the constitution to make 
aliens eligible to all offices, except the three named, (to wit, those 



* And in some of the States, as Illinois and Michigan, for example, they are 
allowed to vote. 

The provision in the constitution of the United States, in regard to electors, is 
this: (art. 1, sec. 2.) 

" The House of Representatives shall be composed of members chosen every sec- 
ond year, hy the penple of the several States," (not by the citizens of the United 
States m each State, but by " the people of the several States,") " and the electors in 
each Stale shall have the qualifications requisite for electors of the most numerous 
branch oi' the State legislature." 

+ They may be judges, ambassadors, secretaries of the departments, commanders 
in the army and navy, collectors of revenue, postmasters, &c., equally with the 
citizens. 

t For the term alien technically implies exclusion from office, exclusion from the 
right of suli'rage and inability to hold real estate. 



WHY ALIENS ARE COUNTED AS " THREE FIFTHS." 245 

of representative, senator, and president,) and to allow them the 
right of voting, would also induce it to allow them some right of 
being counted in making up the basis of representation. On the 
other hand, the same reasons which would forbid their eligibility, 
as representatives, senators, and presidents, would forbid their being 
reckoned equal to citizens, in making up the basis of representa- 
tion ; and would also forbid their votes for those officers being 
counted as equal to the votes of citizens. Yet a single vote could 
not be divided so as to enable each alien to give three fifths, or any 
other fraction, of a vote- Here then was a difficulty. To have 
allowed the separate States full representation for their aliens, as 
citizens, while it denied the aliens themselves the full rights of 
citizenship, (as, for instance, eligibility to the legislative and high- 
est executive offices of the government,) would have been incon- 
sistent and unreasonable. How, then, was this matter to be 
arranged ? The answer is, just as this argument claims that it 
was arranged, viz., by allowing the aliens full liberty of voting, at 
the discretion of the State governments, yet at the same time so 
apportioning the representation among the States, that each State 
would acquire no more weight in the national government, than if 
her aliens had each given but three fifths of a vote, instead of a 
full vote. 

In this manner all the inconsistency of principle, which, it has 
been shown, would have otherwise existed between the different 
provisions of the constitution, relative to aliens, as compared with 
citizens, was obviated. At the same time justice was done to the 
States, as States; also to the citizens, as citizens; while justice, 
liberality, and consistency were displayed towards the aliens them- 
selves. The device was as ingenious, almost, as the policy was 
wise, liberal, and just. 

Compare now the consistency and reason of this arrangement 
with the inconsistency and absurdity of the one resulting from the 
slave hypothesis. According to the latter, the States are allowed 
the full weight of their aliens, as citizens, in filling those depart- 
ments of the government, (the legislative and highest executive,) 
which aliens themselves are not allowed to fill. 2. Aliens are 
allowed full votes with the citizens in filling offices, to which, 
(solely by reason of not being citizens,) they are not eligible. 3. 
And what is still more inconsistent, absurd, and atrocious even, 
half the States are allowed a three fifths representation for a class 
of persons, whom such States have made enemies to the nation, 
21* 



246 UNCONSTITUTIONALITY OF SLAVERY. 

and who are allowed to fill no office, are allowed no vote, enjoy no 
protection, and have no rights in, or responsibility to, the govern- 
ment. 

If legal rules require us to make an instrument consistent, rather 
than inconsistent, with itself, and to 'give it all a meaning that is 
reasonable and just, rather than one that is unjust and absurd, what 
meaning do they require us to give to the constitution, on the point 
under consideration ? 

The only imperfection in the constitution on this point seems to 
be, that it does not sect/re the elective franchise to aliens. But this 
omission implies no disfavor of aliens, and no inconsistency with 
the actual provisions of the constitution ; nor is it any argument 
against the theory here maintained; for neither does the constitu- 
tion secure this franchise to the citizens, individually, as it really 
ought to have done. It leaves the franchise of both citizens and 
aliens at the disposal of the State governments separately, as being 
the best arrangement that could then be agreed upon, trusting, 
doubtless, that the large number of aliens in each State would 
compel a liberal policy towards them. 

From this whole view of the subject, it will be seen that the 
constitution does not, in reality, consider unnaturalized persons as 
aliens, in the technical sense of that term.* It considers them as 
partial citizens, that is, as three fifths citize?is, and tivo fifths aliens. 
The constitution could find no single term by which to describe 
them, and was therefore obliged to use the phrase, " all other per- 
sons" than "the free," that is, "ail other persons" than those 
entitled to full representation, y^/ZZ rights of eligibility to office, and 
^ull rights of citizenship generally. The term " alien" would have 
been a repulsive, unfriendly, and wholly inappropriate .one, by 
which to designate persons who were in fact menjbers of the gov- 
■-.rnment, and allowed to participate in its administration on a foot- 
ing so near to an equality with the citizens. As the word had 
acquired a technical meaning, indicative of exclusion from office, 
from suffi-age, from the basis of representation, and from the right 
of holding real estate, its use in the constitution would have served 
to keep alive prejudices against them, and would have been made 
a pretext for great illiberality and injustice towards them. Hence 
the constitution nowhere uses the word. 

How much more reasonable in itself, and how much more cred- 



* They are called aliens in this argument, for the want of any other word that 
will describe them. 



WHY THE WORDS " FREE PERSONS'" WERE USED. 247 

liable to the constitution and the people, is tkis mode of accounting 
for the use of the words " all other persons," than the one given 
by the advocates of slavery, viz., that the people had not yet become 
sufficiently shameless to avow their treason to all the principles of 
liberty for which they had been distinguished, and, therefore, 
Instead of daring to use the word " slaves," they attempted to hide 
their crime and infamy under such a fig-leaf covering as that of 
the words " all other persons," But the law knows nothing of 
any such motives for using unnatural and inappropriate terms. It 
presumes that the term appropriate for describing the thing is used 
when that term is known — as in this case it was known, if the 
diinsfs intended to be described were slaves. 



CHAPTER XXI, 

WHY THE WORDS "FREE PERSONS" WERE USED 

The words " free persons" were, I think, of themselves — that 
is, independently of any desire that we may suppose a part of the 
people to have had to pervert their true meaning — the most 
appropriate words that could have been used to describe the native 
and naturalized citizens — that is, the full citizens, as distinguished 
from those partial citizens, (not technically aliens, though commonly 
called aliens,) — whom I have supposed the words " ail other per- 
sons" were intended to describe. 

The real distinction between these two classes was, that the 
first class were free ef the government — that Is, they were fuM 
members of the State, and could claim ihefull liberty, enjoyment 
and protection of the laws, as a matter of right, as being parties 
to the compact ; while the latter class were not thus free ; they 
could claim hardly anything as a right, (perhaps nothing, unless 
it were the privilege of the writ of habeas corpus,) and were only 
allowed, as a matter of favor and discretion, such protection and 
privileges as the general and State governments should see fit to 
accord to them. 

It was important that the first of these classes should be de- 
scribed by some technical term ; because technical terms are more 
definite, precise, and certain, in their meaning, than others. And 
in this case, where representation and taxation were concerned, 
the greatest precision that language admitted of was requisite. 
Now, I think, there was no other word in the language that would 



248 THE TJNCONSTITtTTIONALITY OF SLAVERY. 

have described so accurately, as does the word " free," (when used 
in its technical sense,) the class which I have supposed it was 
intended to describe. 

The technical term, in the English law, for describing a member 
o/" ^Ae ivJa^e, is " free subject."-'^ "Free subjects" are the whole 
body of the people, men, women, and children, who were either 
born within the dominions and allegiance of the crown,t or have 
been naturalized by act of parliament. Individually, they are 
memhei's of the state ; collectively, they constitiite the state. As 
members of the state, they are individually entitled, of right, to 
all the essential liberties and rights which the taws secure to the 
people at large. 

" Free subjects " are distinguishable from aliens, or persons 
born out of the country, but residmg in the country, and allowed, 
as a matter of privilege, such protection as the government sees 
fit to acc6rd to them. 

" Free subjects " are also distinguishable from denizens, who, in 
the English law, are persons born out of the country, and not 
naturalized by act of parliament, but have certain privileges con- 
ferred upon them by the king's letters patent.? 

This term, " free subject," had been universally used in this 
country, up to the time of the revolution, to describe members of 
the state, as distinguished from aliens. The colonial charters 
guarantied to the subjects of the British crown, settling in the 
colonies, that they and their children should " have and enjoy all 
the liberties and immunities o{ free and natttral subjects, to ail 
intents, constructions,, and purposes whatsoever, as if they and 
every of them were born within the realm of England." And 
up to the revolution, the colonists, as everybody knows, all claimed 
the rights and the title of '■'■free British subjects." They did not 
call themselves citize?is of Massachusetts, and citizens of Virginia. 
They did not call themselves citizens at all. The word citizen 
was never, I think, used in the English law, except to describe 
persons residing, or having franchises, in a city ; as, for example, 

* " Subjects are members of ike eommonwcaJlh, ua-der the king their head." 
Jacob's, ]Villiams', and Cunningham's Laic Dictionaries. 

+ " All those are natural-horn subjects, whose parents, at the time of their birth, 
Trere under the actual obedience of" our king, and whose place of birth was within 
his dominions." — 7 Coke's Rep., p. IS. Bacon's Abridg., title Alien. Cunning- 
ham's Law Dictionary, title Alien. 

t " A denizen is in a kind of middle state, between an alien and a natural-bonj 
subject, and partakes of both of them." — 1 Btackstone, 373. Jacob's Imw DicL 



WHY THE WORDS " FREE PERSONS " WERE USED. 249 

citizens of London. But as members of the state, they were all 
called " free subjects," or " free British subjects." 

Up to the time of the revolution, then, the term " free subject" 
was the only term in common use to describe members of the state, 
as distinguished from aliens. As such it was universally known 
in the country, and universally used.^ 

The term " free" was also naturally an appropriate one by which 
to describe a member of a free state ; one who was politically 
free, and entitled, of right, to the full and free enjoyment of all 
the liberties and rights that are secured to the members of a gov 
ernment established for the security of men's personal freedom. 
What but a " free subject," or " free person," could such a member 
of a free state be appropriately called ? 

And when it is considered in what estimation " the liberties of 
England," " of Englishmen," and of English subjects everywhere, 
were held ; that they were the peculiar pride and boast of the 
nation ; the title of " free " is seen to be a perfectly natural and 
appropriate one, by which to designate the political ra-nk of those 
who were entitled, of right, to the possession and enjoyment of all 
those liberties, as distinguished from those not entitled to the same 
liberties. 

After the Declaration of Independence, the word ' subject" was 
no longer an appropriate name for the people composing oar repub- 
lican States ; for '' subject " implied a sovereign ; but here the 
people had themselves become the sovereigns. The term " sub- 
ject" was, therefore, generally dropped. It seldom appears in the 
State constitutions formed after the Declaration of Independence, 

But although the term "subject" had been generally dropped, 
yet, up to the adoption of the United States constitution, no other 
single term had been generally adopted in the several State consti- 
tutions, as a substitute for " free subject," to describe the members 
of the state, as distinguished from aliens. 

The terms people, inhabitants, residents, which were used in 
most of the State constitutions, did not mark the difference between 
native and naturalized members of the state, and aliens. 

The term " freeman" was used in some of the State constitu- 



* The only other term, I think, that was ever used in the English law, in a 
similar sense, was "freeman;" as, for instance, "freeman of the realm." But 
" free subject " was the common term. " Freeman " was more generally used to 
denote members of incorporated trading companies, and persons possessing fran- 
chises in a city. Besides, it did not, I think, so generally, if ever, include womeu 
and children, as did " free subjects." 



950 THE UNCONSTITUTIONALITY OF SLAVERY. 

tions ; but its meaning is sometimes indefinite, and sometimes 
different from what it appears to be in others. For example. In 
the then existing Declaration of Rights of the State of Delaware, 
(Sec. 6,) it would seem to be applied only to male adults. In the 
then existing " constitution and form of government " of Maryland, 
(Sec. 42,) it would seem to include only males, but males under 
as well as over twenty-one years of age. Again, in the " Declara- 
tion of Rights" of the same State, (Sees. 17 and 21,) it would 
seem to include men, women, and children. In the " Declaration 
of Rights" of North Carolina, (Sees. 8, 9, 12, and 13,) it would 
seem to include men, women, and children. Again, in the " con- 
slitution or form of government" of the same State, (Sees. 7 and 
8,) it would seem to mean only male persons. 

The result was, that the precise legal meaning of the word was 
not sufficiently settled by usage in this country, nor had the word 
itself been so generally adopted in the State constitutions, as to 
make it either a safe or proper one to be introduced into the repre- 
sentative clause in the United Stales constitution. It would also 
have been equally objectionable with the words '■'■free persons," in 
its liability to be interpreted as the correlative of slavery. 

What term, then, should the United States constitution have 
adopted to distinguish the full members of the state from unnat- 
uralized persons ? " Free subjects " was the only term, whose 
meaning was well settled, and with which the whole people of the 
United States had ever been acquainted, as expressing that idea, 
and no other. But the word " subject," we have already men- 
tioned, was no longer appropriate. By retaining the word " free," 
which was the significant word, and substituting the word " per- 
sons" for " subjects," the same body of people would be described 
as had before been described by the term " free subjects," to wit, 
all the full members of the state, the native and naturalized per- 
sons, men, women, and children, as distinguished from persons of 
foreign birth, not naturalized. What term, then, other than " free 
persons," was there more appropriate to the description of this 
body of the people ? 

The word " free," it must be constantly borne in mind, if intro- 
duced into the constitution, would have to be construed with refer- 
ence to the rest of the instrument, in which it was found, and of 
course with reference to the government established by that instru- 
ment. In that connection, it could legally mean nothing else than 
the members of the state, as distinguished from others, unless, (as 



WHY THE WORDS " FREE PERSONS " WERE USED. 251 

was not the case,) other things should be introduced into the 
instrument to give the word a different meaning. 

The word " free," then, was an appropriate word, in itself, and, 
in its technical se-nse, (which was its presumptive sense,) it was pre- 
cisely the word, to be used in the constitution, to describe with 
perfect accuracy all that body of the people, native and naturalized, 
who were full members of the state, and entitled, of right, to the 
full liberty, or political freedom, secured by the laws, as distin- 
guished from aliens and persons partially enfranchised. In short, 
it described, with perfect accuracy, those who were free of the 
government established by the constitution. This was its precise 
legal meaning, when construed, as it was bound to be, with refer- 
ence to the rest of the instrument ; and it was the only meaning 
that it could have, when thus construed. 

A word of this kind was wanted — that is, a word of precisely 
the same meaning, which the word free, in its technical sense, 
bears, with reference to the rest of the instrument and the govern- 
ment established by it, was wanted — because representation and 
taxation were to be based upon the persons described, and perfect 
accuracy of description was therefore all important. 

Now, those who object to the term " free persons " being taken 
in that sense, are bound to show a better term that might have 
been used to describe the same class of persons. I think there is 
not another word in the language, technical, or otherwise, that 
would have described them so accurately, or so appropriately. 

The term " freemen," we have seen, would not have been so 
appropriate, for it was liable to be taken in a narrower significa- 
tion, so as to include only male adults, or persons entitled to the 
elective franchise. But " free persons" included men, women, and 
children, voters and non-voters, who were entitled to protection 
under the laws as of right. 

'■' People," " residents," and " inhabitants" would not do, because 
they included all persons living in the country, native, naturalized, 
and aliens. 

The only other word, that could have been used, was " citizens.^ 
Perhaps if that word had been used, the courts, construing it with 
reference to the rest of the instrument, would have been bound to 
put the same construction upon it that they were bound to put 
upon the words " free persons." Nevertheless, there were deci- 
sive objections against the adoption of it in the representative clause. 
The word " citizens " was not, at that time certainly, (even if it be 



252 THE UNCONSTITUTIONALITY OF SLAVER'S. 

now,) a word that had acquired any such definite meaning, either 
in England, or in this country, as describing the great body of free 
and equal members of the slate, men, women, and children, as 
had the word " free." In fact, it had probably never been used in 
that sense at all in England ; nor in this country iip to the time 
of the revolution. And it is probable, (as will hereafter be seen,) 
that it had never been used in that sense in this country, up to the 
adoption of the constitution of the United States, unless in the 
single constitution of Massachusetts. Its meaning, in this country, 
is, to this day, a matter of dispute. Lawyers, as well as others, 
differ about it, as will presently be seen. 

The word " citizen" is derived from the Latin civis; and its true 
signification is to describe one's relations to a city, rather than to a 
state. It properly describes either a freeman of a city, or a mere 
resident, as will be seen bv the definitions given in the note.^ 



* " Civis, a citizen ; a freeman or woman ; a denizen." — Ainsicorth. 

" Citizen, a freeman of a city; not a foreigner ; not a slave." — Johnson. 

"Citizen, a freeman of a city." — Bailey. 

" Citizen.? {cires) are either freemen, or such as reside and keep a family in the 
city, (f*c., and some are citizens and freemen, and some are not, who have not so 
great privileges ui the others.'' — Williams'' Laic Dictionary ; Cunning-ham's do. 

"Citizen, a native or inhabilaiii of a city, vested with the freedom and rights 
thereof" — Rees' Cyclopedia. 

" The civil g-nvernment of the city of London is vested by charters and grants 
from the kings of England, in its own corporation, or body of citizens." — Rees' 
Cyclopedia. 

"CiTovEN, (Fr.) citizen, an iiihabitant, or freeman of a city." — Boyer. 

"Citizen, an inhabitant of a city; one who dwells or inhabits in s. city ; one 
who possesses or enjoys certain privileges of a city ; a freeman of a city ; one who 
follows, pursues, or practises the trades or businesses of a city, as opposed to those 
who do not." — Richardson. 

" Though they are in the world, they are not of it, as a citizen of one city may 
live in another, and yet not be free of it, nor properly of it, but a mere stranger 
and a foreigner." — Bishop Bevcridge, cited by Richardson. 

"Citizen. 1. The native of a city, or an inhabitant who enjoys the freedom 
and privileges of the city in which he resides ; the freeman of a city, as distin- 
guished from a foreigner, or one not entitled to its franchises. * * * 

5. In the United States, a person, native or naturalized, who has the privilege 
of exercising the elective ^franchise, or the qualifications which enable him to vote 
for rulers, and to purchase and hold real estate." — Webster. 

" Citizens, persons. One who, under the constitution and laws of the United 
States, has a ritrht to vote for representatives in congress, and other pitblic officers, 
•mAivho is qualified to fill offices in the gift of the people." — Bouvier's (American) 
Law Diet. 

Kent denies that citizenship depends on one's right of suffrage, and says that 
women and children are citizens. — 2 Kent, 258, vote in third edition. 

I am not aware that Story anywhere gives a definition of the word citizen, as it 



WHY THE WORDS "FREE PERSONS " WERE USED. 253 

It will be seen also, by these definitions, that, taking the word 
in its lest sense, and also with reference to the state, it could, at 
most, only have been held synonymous with the " free persons" 
or "freemen" of the state; and that we should then have been 
obliged to employ these latter terms, in their technical senses, in 
order to define it. 

It would also have been even more liable than the term " free" 
to the objection of impliedly excluding slaves; for in Rome, where 
the term was used, and whence it has come down to us, they had 
slaves, who of course were not regai'ded as citizens ; while in 
England, whence the term "free" was borrowed, they had no 
slaves. 

The term " free citizen" was also used in the then existing 
Slate constitutions of Georgia and North Carolina, where they 
held slaves, (though not legally.) If, then, the word had been 
employed in the United States constitution, there would have been 
at least as much reason to say that it excluded slaves, as there 
would be for saying that the word " free" excluded them. 

The term "citizen" was objectionable in still another respect, 
viz., that it seems to have been previously, as it has been since, 
employed to define those who enjoyed the elective franchise. But 
it would be unreasonable that the constitution should base repre- 
sentation and taxation upon a distinction between those enjoying 
the elective franchise, and " all other persons" — it being left with 
the States to say who should enjoy that franchise. Yet, if the 
constitution had used the word " citizen " in connection with rep- 
resentation and taxation, it might have given some color to that 
idea. 

But to prove how inappropriate would have been the use of the 
word "citizens," in the representative clause — where a word of a 



IS used in the constitution. He says, that "every citizen of a State is ipso facte 
a citizen of the United States ;" and that " a person who is a naiuralized citizen 
of the United States, by a like residence in any State in the Union, becomes ipse 
facto a citizen of tliat State." — (3 Com. on Const., p. 565-6.) But this saying 
that a citizen of a Stale is a citizen of the United States, and vice versa, gives us 
no information as to who is either a citizen of a State, or of the United States, 
other than those "naturalized" by act of Congress. 

These authorities show that the word citizen has had different meanings, and 
that its meaning was not, at the adoption of the constitntion, and even now is not, 
well settled, and therefore that it was not a proper word to be used in a clause 
where certainty was so important. 

It is especially uncertain whether the word citizens would have included women 
and children, as do the words " free persons." 

22 



254 THE UNCONSTITUTIONALITY OF SLAVERY. 

precise and universally known meaning was required — the follow- 
ing facts are sufficient ; for we are to look at the word as people 
looked at it at that day, and not as we look at it now, when it has 
grown into use, and we have become familiar with it. 

Of all the State constitutions in existence in 1789, the word 
citizen was used in but tltree, to wit, those of Massachusetts, North 
Carolina, and Georgia; and in those, only in the following man- 
ner : 

In the constitution of RIassachusetts it was used some half dozen 
times, and in such connections as would indicate that it was used 
synonymously with the members of the state. 

In the constitution of North Carolina it was used but once, (Sec. 
40,) and then the term "-free citizen," was used ; thus indicating, 
either that they had more than one kind of citizens, or that the 
word citizen itself was so indefinite that its meaning would be 
liable to be unknown to the people, unless the word free were 
used to define it. 

In the constitution of Georgia it was used but once, (Art. 11,) 
and then in the same manner as in the constitution of North Car- 
olina, that is, with the word free prefixed to it for the purpose of 
definition. 

In the constitutions of the other ten States, (including the char- 
ters of Rhode Island and Connecticut,) the word citizen was not 
used at all. 

In the Articles of Confederation it was used but once, (Art. 4, Sec. 
1,) and then the term was, as in the constitutions of Georgia and 
North Carolina, '■'free citizens." 

So that there was but one constitution, (that of Massachusetts,) 
out of the whole fourteen then in the country, in which the word 
citizen could be said to be used with any definite meaning attached 
to it. In the three other cases in which it was used, its own indefi- 
niteness was confessed by the addition of the word/ree, to define it. 

A word so indefinite, and so little known to the people, as was 
the word citizen, was of course entirely unsuitable to be used in 
the representative clause for the purpose of describing the native 
and naturalized members of the state, men, women and children, 
as distinguished from persons not naturalized. 

For all these reasons the word citizens was objectionable ; while 
in reference to slavery, it would seem to have been not one whit 
better than the words " free persons." 

Finally, the term " free persons " was much more appropriate, 



WHY THE WORDS "FREE PERSONS" WERE USED. 255 

in itself, to designate the members of a free state, of a republican 
govermnent, than was the word citizen, which, of itself, implies 
00 necessary relationship to a free state, any more than to an 
aristocracy. 

What objection was there, then, to the use of the words " free 
persons," in the constitution, for describing the members of the 
state ? None whatever, save this, viz., the liability of the words 
to be perverted from that meaning, if those who should administer 
the government should be corrupt enough to pervert thein. This 
was the only objection. In every other A^iew, the words chosen, 
(as well the words " free persons" as the words " all other per- 
sons," '^) were the best the English language afTorded. They 
were the most accurate, the most simple, the most appropriate, to 
express the true idea on which a classification for purposes of rep- 
resentation and taxation should be founded. 

These words, then, being, in themselves, the best that could be 
used, could the North have reasonably objected to their use ? No. 
They could not say to the South, " We fear you do not understand 
the legal meaning which the wrord free will bear in this instru- 
ment." For everybody knew that such was the meaning of that 
word when used to describe men's relation to the state ; and every- 
body was bound to know, and every lawyer and judge did actually 
know, that the word, if used in the manner it is in the constitution, 
could legally be construed only with reference to the rest of the 
mstrument, and consequently could describe only one's relation to 
the government established by the instrument; that it was only by 
violating all legal principles of interpretation that it could be made 
to describe any merely personal relation between man and man, 
illegal and criminal in itself, and nowhere else recognized by the 
instrument, but really denied by its whole purport. 

The legal meaning of the word, then, was undoubted ; and that 
was 'all the North could require. They could not require that 
other language should be introduced for the special purpose of 
preventing a fraudulent construction of this word. If it had been 
intended to form the constitution on the principle of making every- 
thing so plain that no fraudulent construction could possibly be put 
upon it, a new language must have been invented for the purpose ; 
the English is wholly inadequate. Had that object been attempted, 
the instrument must have been interminable in length, and vastly 



* See Chap. 20 and 22, 



256 THE UNCONSTITUTIOi^ALlTY OF SLAVERY. 

more confused in meaning than it now is. The only practicable 
way was for the instrument to declare its object in plain terms in 
the preamble, as it has done, viz., the establishment of justice, and 
the security of liberty, for " the people of the United States, and 
their posterity," and then to use the most concise, simple, and 
appropriate language in all the specific provisions of the instru- 
ment, trusting that it would all be honestly and legally interpreted, 
with reference to the euds declared to be in view. And this rule 
could no more be departed from in reference to slavery, than in 
reference to any other of the many crimes then prevalent. 

It would have been only a mean and useless insult to the honest 
portion of the South, (if there were any honest ones amongst them,) 
to have said to the whole South, (as we virtually should have 
done if any specific reference to slavery had been made,) " We 
fear you do not intend to live up to the legal meaning of this 
instrument. We see that you do not even enforce the State con- 
stitutions, which you yourselves establish; and we have suspicions 
that you will be equally false to this. We will, therefore, insert 
a special provision in relation to slavery, which you cannot mis- 
construe, if you should desire to do so." 

The South would have answered, "Whatever may be your 
suspicions of us, you must treat with us, if at all, on the presump- 
tion that we are honorable men. It is an insult to us for you to 
propose to treat with us on any other ground. If you dare not 
trust us, why offer to unite with us on any terms ? If you dare 
trust us, why ask the insertion of specifications implying your 
distrust? We certainly can agree to no instrument that contains 
any imputations upon our own integrity. We cannot reasonably 
be asked to defame ourselves." 

Such would have been the short and decisive answer of the 
South, as of any other community. And the answer would have 
been as just, as it would be decisive. 

All, then, that the North could ask of the South was to agree to 
an honest instrument, that should " be the supreme la*v of the 
land, anything in the constitution or laws of any State to the con- 
trary notwithstanding," and that all State, as well as national 
officers, executive, legislative, and judicial, should swear to sup- 
port it. This the South were ready to do, some probably in good 
faith, others in bad faith. But no compact could be formed 
except upon the presumption that all were acting in good faith, 
whatever reason they may have had to suspect the contrary on 



" ALL OTHER PERSONS." 257 

the part of particular portions of the country, or with reference to 
particular portions of the instrument. And it would have been as 
foolish as useless to have suggested the idea of especial guards 
against fraudulent constructions in particular cases. 

It was a great point gained for liberty, to get the consent of the 
whole country to a constitution that was honest in itself, however 
little prospect there might be that it would be speedily enforced in 
every particular. An instrument, honest in itself, saved the char- 
acter and conscience of the nation. It also gave into the hands of 
the true friends of liberty a weapon sure to be sufficient for their 
purposes, whenever they should acquire the numbers necessary to 
wield it to that end. 



CHAPTER XXII. 

"ALL OTHER PERSONS." 

It has been already shown, (in chapter 20,) that there was a 
sufficient, and even a necessary reason for the use of the words 
" all other persons," in preference to the word " aliens." 

That reason was, that the word " alien " had a technical mean- 
ing, implying exclusion from office, exclusion from suffrage, and 
exclusion from the right to hold real estate ; whereas, the constitu- 
tion intended no exclusion whatever, except simply from the three 
offices of president, senator, and representative. The word 
" aliens," then, would have been a false word of itself, and would 
also have furnished ground for many mischievous and unfriendly 
implications and prejudices against the parties concerned. 

If, then, only this single class of persons had been intended, 
there was ample reason for the use of the words, " all other per- 
sons ;" while, on the slave hypothesis — that is, on the hypothesis 
that the words include only slaves, as they Are generally supposed 
to do — no reason at all can be assigned for the use of these words, 
instead of the word slave, except such a reason as we are not at 
liberty to attribute to a law or constitution, if by any other reason- 
able construction it can be avoided. 

But whether the words "all other persons" include slaves, or 
unnaturalized persons, there was still another reason for the use 
of the words, " all other persons," in preference either to the 
22* 



^^ THE UNCONSTITUTIONALITY OF SLAVERY. 

word slaves, or the word alie/is. That reason was, that the three 
fifths class was to include more than one kind of persons, whether 
that one kind were slaves or unnaturalized persons. " Indians 
not taxed" were to be included in the same count, and, therefore, 
neither the word slaves, nor the word aliens, would have correctly 
described all the persons intended. 

So far as I am aware, all those who hold slavery to be constitu- 
tional, have believed that " India.ns not taxed" were excluded both 
from the count of units, and the three fifths count ; that the word* 
"all other persons" refer solely to slaves; and that those words 
were used solely to avoid the mention of slaves, of which the peo- 
ple were ashamed. They have believed these facts j?ist as firmly 
as they have believed that slavery was constitutional. 

I shall attempt to prove that " Indians not taxed," instead of 
heing excluded from both counts, were included in the three fifths 
class, and, consequently, that the words " all other persons" were 
perfectly legitimate to express the two kinds of persons, of which 
that class were to be composed. If this proof be made, it will 
furnish another instance in which those who hold slavery to be 
constitutional, have made false law, by reason of their abandoning 
legal rules of interpretation, and construing everything in the 
light of their assumed insight into certain knavish intentions that 
are nowhere expressed. 

The clause reads as follows : — r 

" Eepresentatives and direct taxes shall be apportioned among 
the several States which may be included within this union, ac- 
cording to their respective numbers, which shall be determined by 
adding to the Avhole number of free persons, (including those 
bound to service for a term of years, and excluding Indians not 
taxed,) three fifths of all other persons." 

The question arising on this clause is, whether there be any 
class made by it, except the class of 2inits, and the three fifths 
elass ? Or whether there be three classes, to wit, the class of units, 
the three fifths class, and another class, " Indians not taxed," who 
are not to be counted at all? 

To state the question is nearly enough to answer it, for it is 
absurd to suppose there is any class of " the people of the United 
States" who are not to be counted at all. " Indians not taxed," 
(that is, not taxed directly, for all Indians are taxed indirectly,) 
are as much citizens of the United States as any other persons. 



" ALL OTHER PERSONS." 259 

and they certainly are not to be unnecessarily excluded from the 
basis of representation and taxation.^ 

It would seem to be grammatically plain that the words " all 
other persons'" include all except those counted as units. And it 
would probably have always been plain that such was their mean- 
ing, but for the desire of some persons to make them include 
slaves, and their belief that, in order to make them include slaves, 
they must make them include nobody but slaves. 
• The words " including those bound to service for a term of 
Tjears, and excluding Indians not taxed^'' are parenthetical,! and 
might have been left out, without altering the sense of the main 
sentence, or diminishing the number of classes. They are thrown 
ill, not to increase the number of classes, but simply to define who 
may, and who may not, be included in the^rs^ class, the class of 
units. 

This is proved, not only by the fact, that the words are paren- 
thetical, (which would alone be ample proof,) but also by the fact 
that the tvvo participles, ^'including'''' and '■'■ excludiiig" are con- 
nected with each other by the conjunction " and," and are both 
parsed in the same manner, both having relation to the " number" 
counted as units, and to that alone. 

The words, " excluding Indians not taxed" exclude the Indians 
mentioned simply from the count of the preceding " number," the 



* In saying that Indians were " citizens of the United States," I of course mean 
those living under the actual jurisdiction of the United States, and not those who, 
though living within the chartered limits of the States, had never had the State or 
United States jurisdiction extended over them ; but by treaty, as well as of right, 
retained their independence, and were governed by their own usages and laws. 

It may be necessary for the information of some persons to state ttsat the juris- 
dictions of the several States have not always been coextensive with their chartered 
limits. Thelatter were fixed by the charters granted by the crown, and had reference 
only to the boundaries of the respective colonies, as against each other. But the 
rights of the colonies, (and subsequently of the States,) within their chartered lim- 
its, were subject to the Indian right of soil, or occupancy, except so far as that 
right should be extinguished by the consent of the Indians. So long as the Indi- 
ans should choose to retain their right of soil, or occupancy, and their indepen- 
dence, and separate government, our governments had no jurisdiction over them, 
and they were not citizens of the United States. But when they surrendered theit 
right of soil, or occupancy, abandoned their separate government, and came within 
our jurisdiction, or the States and the United States extended their jurisdiction 
over them, they became citizens of the United States, equally with any other per- 
sons. At the adoption of the constitution, there were several independent tribes 
within the chartered limits of the States. Others had surrendered their indepen- 
dent existence, and intermingled with the whites. 

t I have inclosed them in parenthesis to show the sense more distinctly. 



260 THE UNCONSTITUTIONALITV OF SLAVERY. 

number to which the word " excluding" relates; that is, the count 
of units. They do nothing more. They do not exclude them 
from any other count ; they do not create, or at all purport to cre- 
ate, out of them a distinct class. They do not at all imply that 
they are not to be counted at all. They do not, of theviselves, 
indicate whether these Indians, that are excluded from the count 
of units, are, or are not, to be included in, or excluded from, 
any other count. They simply exclude them from the first county 
leaving them to be disposed of as they may be, by the rest of the* 
clause. 

To make this point more evident, let us write the clause again, 
supplying two words that are necessary to make the sense more 
clear. 

" Representatives and direct taxes shall be apportioned among 
the several States which may be included within this union, ac- 
cording to their respective numbers, which shall be determined by 
adding to the whole number of free persons, (including therein 
those bound to service for a term of years, and excluding therefrom 
Indians not taxed,) three fifths of all other persons." 

Such is plainly the true grammatical construction of the sen- 
tence ; and the phrases, " including therein,''^ and " excluding there- 
from" both plainly relate to one and the same number or count, 
to wit, the number counted as units, and to that only. Grammat- 
ically, one of these phrases has no more to do with the class of 
" all other persons," than the other. 

On grammatical grounds there would be just as much reason in 
saying that the word " including" inchides servants in the class of 
' all other persons,'' as there is in saying that the word " exclud- 
mg" excludes Indians from that class ; for it is perfectly apparent, 
that the words including and excluding refer only to one and the 
same number, and that number is the number counted as units. 

To illustrate this point further, let us suppose these parenthetical 
sentences to have been transposed, and the clause to have read thus: 

" By adding to the whole number of free persons, {exchtding 
therefrom Indians not taxed, and including therein, those bound to 
service for a term of years,) three fifths of all other persons." 

It is plain that the sense of the clause would not have been in 
the least altered by this transposition. Yet would anybody then 
have supposed that Indians were excluded from the class of '• aU 
other persons ?" Or that " those bound to service for a term of 
years " were included in the class of " all other persons ?" Cer- 



*' ALL OTHER PERSONS." 261 

tainly not. Everybody would then have seen that the words in- 
cluding and excluding both related only to the preceding number 
— the number counted as units. Yet it is evident that this trans- 
position has not at all altered the grammatical construction or the 
legal sense of the clause. 

The argument for slavery, while it claims that the word includ- 
ing includes servants in the number of ttnits only, claims that the 
word excluding excludes Indians both from the number of units, 
and also from the number of " all other persons ;" that the word 
including includes servants in only one count, but that the word 
excluding excludes Indians from both counts ; whereas it is per- 
fectly manifest that the two words, including and excluding, relate 
to one and the same count, to wit, the count of units, and to that 
alone. 

There would be just as much reason, on grammatical grounds 
in saying that the word including includes servants in both counts, 
as there is in saying that the word excluding excludes Indians from 
both counts. 

Inasmuch, then, as the words of the parenthesis, viz., the words 
" including those bound to service for a term of years, and exclud- 
ing Indians not taxed," refer only to the count of units, and serve 
only to define those who may, and those who may not, be included 
in that count, they do not, and cannot, create any new class, 
additional to the two named exteriorly to the parenthesis, to wit, 
the class of units, and the three fifths class. 

There being, then, but two classes made, and " Indians not 
taxed," being specially excluded from the first, are necessarily 
included in the last. 

Both the grammar and the law of the clause, (though perhaps 
not its rhetoric,) would therefore be adequately provided for, even 
if there were no other persons than " Indians not taxed " to be 
reckoned in the class of " all other persons ;" for " Indians not 
taxed" are " other persons" than those counted as units. And we 
cannot, I think, make these words, " all other persons," imply the 
existence of slaves, if we can find any other persons than slaves 
for them to refer to. 

Further. There being but two classes made, to wit, the class 
of units and the three fifths class, and " Indians not taxed" bein^ 
excluded from the first, and therefore necessarily included in the 
last, it would follow, if the constitution uses the word " free " as 
the correlative of slaves, that it either considers these Indians as 
dates, or that, for purposes of representation and taxation, it counts 



262 THE UNCONSTITUTIONALITY OF SLAVERY. 

them in the same class with slaves — a thing that, so far as f know 
has never been done. 

But perhaps it will still be said by the advocates of slavery, (for 
this is all they can say,) that " Indians not taxed" are not to he 
counted, at all ; that they are to be excluded from both classes. 

But this is, if possible, making their case still worse. It shows 
how, in order to extricate themselves from one dilemma, they are 
obliged to involve themselves in another — that of excluding en- 
tirely from the popular basis of representation and taxation, a part 
of those who are not only not slaves, but are confessedly actual 
citizens. 

To say that " Indians not taxed" are not to be counted at all ; 
that they are to be excluded both from the class of units and the 
three fifths class, is not only violating the grammar of the clause, 
(as has already been shown,) but it is violating all common sense. 
Indians living under the governments of the States and the United 
Slates — that is, within the territory over which the United States 
and one of the several States have actually extended their civil 
jurisdiction — are as much citizens of the United States as any- 
body else ; and there is no more authority given in the constitution 
for excluding them from the basis of representation and taxation, 
than there is for excluding any other persons whatever. In fact, 
the language of the constitution is express, that all persons shall 
be counted either in the class of units or in the three fifths class ; 
and there is no escape from the mandate. The only exclusion 
that the constitution authorizes, is the exclusion of " Indians not 
taxed" from the count of units. 

But perhaps it will be claimed that Indians are not citizens, and 
therefore they are excluded of course. But there is not the least 
authority for this assertion, unless it be in regard to those tribes, 
or nations, who, living within the chartered limits of the States, 
have, nevertheless, retained their separate independence, usages, 
and laws, and over whom the States have not extended their civil 
jurisdiction. The assertion is wholly groundless as to all those 
Indians who have abandoned their nationality, intermincfled with 
the whites, and over whom the States have extended their juris- 
diction. Such persons were as much a part of the people of the 
United States, and were as much made citizens by the constitution, 
as any other portion of the people of the country. 

This exception of " Indians not taxed" from the count of units, 
ol itself implies that Indians are citizens ; for it implies that, but 



" ALL OTHER PEKSONS." 3^63 

for this express exception, they would aU have been counted as 
units. 

Again. This exception cannot be extended beyond the letter 
of it. It therefore applies only to those " not. taxed ;'' and it ex- 
cludes even those only from the count of units ; thus leaving all 
that are taxed to be counted as units ; which of course implies that 
they are citizens. And if those Indians, who are taxed, are citizens, 
those who are " Tiot taxed'" are equally citizens. Citizenship does 
not depend at all upon taxation, in the case of the Indian, any 
more than in the case of the white man ; if it did, a man would 
be a citizen this year, if he happened to be taxed this year, and 
yet lose his citizenship next year, if he should happen not to be 
taxed next year. 

But it will be asked. If Indians are citizens, why are they not 
all counted as units? The reason is obvious, Th« numbers of 
Indians in the different Slates were so unequal, and they contrib- 
uted so little to the resources of the States in which they lived, 
that justice required that, in apportioning representation and taxa- 
tioa among the separate States, some discrimination should be made 
-on account of this class of population. Being citizens, they must 
be represented ; and being represented, their State must be taxed 
for thera. And no better arrangement could be agreed on, without 
making too many classes, than that of ranking them, (so far as 
representation and taxation were concerned,) on an equality with 
unnaturalized persons. 

It being established that Indians are citizens, it follows that those 
■" not taxed " must be included in the basis of representation and 
taxation, unless expressly excluded. But the express exclusion does 
no more than exclude thera from the count of units., and the ex- 
clusion cannot go beyond the letter. They are therefore necessa- 
rily included in the three fifths class, the class which embraces 
-" all other persons" than those counted as units. 

K ^' Indians not taxed " were also to be excluded from the three 
fifths class, the constitution would have said so ; and would also 
have told us expressly how they should be counted, or that they 
should not be counted at all. 

The clause has thus been explained on the ground of there 
being but two classes made by it, to wit, the class counted as units, 
and the three fifths class ; which are all the classes that the gram- 
mar of the clause will allow to be made. It is to be remarked, 
however, that if the grammar of the clause be disregarded, and 



264 



THE UNCONSTITUTIONALITY OF SLAVERY. 



three classes be made, the clause will still be consistent with the 
alien hypothesis. Indeed, it is immaterial, on the alien hypothesis, 
whether two or three classes be made. Whether the slave hy- 
pothesis can be sustained without making more than two classes, I 
leave for the advocates of slavery to determine."* They will, at 
any rate, be obliged to admit that " Indians not taxed" are included 
in the class described as " all other persons," and thus lose the 
benefit of their stereotyped argument, that those words must mean 
slaves, because they could mean nothing else. They will also be 
obliged to give up their old surmise about the motii'e for using the 
words " all other persons " — a surmise which has always, (in their 
opinion,) wonderfully strengthened their law, although it seems to 
have contained not a particle of fact, t 



* I think it cannot be sustained without making three classes, for the reason 
before given, viz., that the words "all other persons" must not be held to mean 
slaves, if there be any other persons that they can apply to. 

t The following illustration will make it perfectly apparent that the represent- 
ative clause of the constitution requires all the people of the country, (" Indians 
not taxed," as well as others), to be counted in making up the basis of represent- 
ation and taxation ; that it requires and permits them to be divided into twi> 
classFs only, viz., the class of units, and the three-fifths class ; and, finally, that it 
imperatively requires that " Indians not taxed " be included in the three-fifths 
class, or class described as "all other persons." 

The illustration is this. Suppose Congress were to order a census of the i>eopIe» 
for the purpose of making a constitutional apportionment of representation and 
taxation, and should require that the several classes of persons be arranged in 
separate columns, each under its appropriate head, according to the terms used in ths 
oonstitution. The table would stand thus : 



CLASS OF UNITS. 


THRKE-FIFTHS GLASS. 


"The whole number of free persons, 
including those bound to service for & 
term of years, and excluding Indians not 
taxed." 


" All otiier persons.'* 







This table follows the directions of the constitution, to the letter. And yet, it 
clearly makes but two clas?i3 ; and the two classes clearly include all the people 
of the United States. The word " excluding " clearly excludes " Indians not 



CHAPTER XXIII. 

ADDITIONAL ARGUMENTS ON THE WORD "FREE.* 

ARGUMENT I. 

The constitutional argument for slavery rests mainly, if not 
wholly, upon the word/ree, in the representative clause; (Art. 
Sec. 2.) 

Yet this clause does not, of itself, at all purport to fix, change 
or in any way affect, the civil rights or relations of any single 
individual. It takes it for granted that those rights and relations 
are fixed, as they really are, by other parts of the instrument. It 
purpoits only to prescribe the manner in which the population 
shall be counted, in making up the basis of representation and 
taxation ; and to prescribe that representation and taxation shall be 
apportioned among the several States, according to the basis so 
made up. This is the whole purport of the language of the 
clause, and the whole of its apparent object ; and it is a palpable 
violation of all legal rules to strain its legal operation beyond this 
purpose. To use the clause for a purpose nowhere avowed, 

taxed *' only from the first class. The second olas3 also clearly includes all that 
are excluded from the first. It, therefore, clearly includes "Indians not taxed." 

These facts entirely overthrow the argument that "all other persona " must 
mean slaves, because there were no other persons whom they could mean. 

It is of no importance to say that " Indians not taxed " have never been included 
in the three-fifths count. The answer is, There is the plain letter of the constitution; 
and if Congress have not complied with it, it has been owing eitber to their 
ignorance, or their corruption. 

23 



266 THK UNCONSTITUTIONALITY OF SLAVERY. 

either in itself or the rest of the instrument, viz., that of destroy- 
ing rights with which it does not at all purport to intermeddle, is 
carrying fraudulent and illegal interpretation to its last extent. 

Yet this provision for simply counting the population of the 
country, and apportioning representation and taxation according to 
that count, has been transmuted, by unnecessary interpretation, 
into a provision denying all civil rights under the constitution to a 
part of the very " people " who are declared by the constitution 
itself to have " ordained and established " the instrument, and 
who, of course, are equal parties to it with others, and have equal 
rights in it, and in all the privileges and immunities it secures. 

If parties, answering to the several descriptions given of them 
in this clause, can he found, (so as simply to be counted,) without 
supposing any change or destruction of individual rights, as estab- 
lished by other parts of the instrument, we are bound thus to find 
and count them, without prejudice to any of their rights. This is 
a self-evident proposition. That parties, answering to the several 
descriptions, can be found, without supposing any change or de- 
struction of individual rights, as contemplated by the other parts of 
the instrument to exist, has already been shown. And this fact is 
enough to settle the question as to the legal effect of the clause. 

The whole declared and apparent object of the clause, viz., the 
counting of the population, and the apportionment of the represen- 
tation and taxation according to that count, can be effected with- 
out prejudice to the rights of a single individual, as establijhed by 
the rest of the instrument. This being the case, there is no 
epithet strong enough to describe the true character of that fraud 
which would pervert the clause to a purpose so entirely foreign to 
its declared and apparent object, as that of licensing the denial 
and destruction of men's rights ; rights everywhere implied 
throughout the entire instrument. 



AEGXTMENT U. 

It would have been absurd to have used the word "/ree" in a 
sense correlative with slaves, because it is a self-evident truth that, 
taking the woid in that sense, a?^ men are naturally and rightfully 
free. This truth, like all other natural truths, must be presumed 
to be taken for granted by all people, in forming their constitu- 
tions, unless they plainly deny it. Written constitutions of gov- 
ernment could not be established at all, unless they took for 



ADDITIONAL ARGUMENTS ON THE WORD "FREE." 267 

granted all natural truths that were not plainly denied ; because, 
the natural truths that must be acted upon in the administration 
of government are so numerous, that it would be impossible to 
enumerate them. They must, therefore, all be taken for granted 
unless particular ones be plainly denied. Furthermore, this par- 
ticular truth, that all men are naturally free, had but recently been 
acknowledged, and proclaimed even, by the same people who now 
established the constitution. For this people, under such circum- 
stances, to describe themselves, in their constitution, as " the 
whole number of free persons, and three fifths of all other per- 
sons," (taking the word "free" in the sense correlative with 
slaves,) would have been as absurd, in itself, (independently of 
things exterior to the constitution, and which the constitution cer- 
tainly cannot be presumed to sanction,) as it would have been to 
have described themselves as " the whole number of males and 
females, and three 'fifths of all other persons." 

Such an absurdity is not to be charged upon a people, upon 
the strength of a single word, which admits of a rational and 
appropriate construction. 

ARGUMENT III. 

The constitution is to be construed in consistency with the 
Declaration of Independence, if possible, because the two instru- 
ments are the two great enactments of the same legislators — the 
people. They purport to have the same objects in view, viz., the 
security of their liberties. The Declaration had never been re- 
pealed, and legal rules require that an enactment later in time than 
another, more especially if the former one be not repealed, should 
be construed in consistency with the earlier one, if it reasonably 
can be, unless the earlier one be opposed to reason or justice.* 

* Lord Mansfield says, " Where there are different statutes in pari materia, 
(upon the same subject,) though made at different times, or even expired, and not 
referring to each other, they shall be taken and construed together, as one system, 
and explanatory of each other." — 1 Burrows, 447. 

" It is an established rule of construction, that statutes in pari materia, or upon 
the same subject, must be construed with reference to each other ; that is, that what 
is clear in one statute, shall be called in aid to explain what is obscure and ambig- 
uous in another." — 1 Blackslonc, 60, note; 1 Kent, 46a. 

Rutherforth says, "In doubtful matters it is reasonable to presume that the 
same person is always in the same mind, when nothing appears to the contrary ; 
that whatever was his design at one time, the same is likewise his design at 
another time, where no sufficient reason can be produced to prove an alteratioa of 



268 THE UNCONSTITUTIONALITY OF SLAVERY. 



ARGUMENT IV. 

It is perfectly manifest, from all the evidence given in the pre- 
ceding pages, (including Part First of the argument,) that the word 
" free," when used in laws and constitutions, to describe one class 
of persons, as distinguished from another living under the same 
laws or constitutions, is not sufficient, of itself , to imply slavery 
as its correlative. The word itself is wholly indefinite, as to the 
kind of restraint implied as its correlative.* And as slavery is the 
worst, it is necessarily the last, kind of restraint which the law 
will imply. There must be some other word, or provision, in the 
tTistrument itself to warrant such an implication against the other 
class. But the constitution contains no such other word or pro-" 
vision. It contains nothing but the simple word " free." While, 
on the other hand, it is full of words and provisions, perfectly 
explicit, that imply the opposite of slavery. 

Under such circumstances, there can be no question which con- 
struction we are legally bound to put upon the word in the consti- 
tution. t 

it. If the words, therefore, of any writing, will admit of two or more different 
senses, when they are considered separately, liut must necessarily be understood in 
one of these senses rather than the other, in order to make the writer's meaning 
agree with what he has spoi^en or written upon some other occasion, the reason- 
able presumption is, that this must be the sense in which he used them." — Ru- 
ihcrforth, B. 2, ch. 7, p. 331-2. 

* See page 179. 

1 1 doubt if^ single instance can be found, even in the statutes of the slaveholding 
States themselves, in force in 1789, where the word free was used, (as the slave 
argument claims that it was used in the constitution,) to describe either white per- 
sons, or the mass of the people other than slaves, (that is, the white and free 
colored,) as distino-uished from the slaves, unless the statute also contained the 
word slave, or some other evidence, beside the word./ree itself, that that was the 
sense in which the word free was used. If there were no such statute, it proves 
that, by the usage of legislation, in 1789, even in the slaveholding States them- 
selves, the vfordfree was insufficient, of itself , to imply slavery as its correlative. 

I have not thought it necessary to verify this supposition, by an examination of 
the statute tiooks of the States, because the labor would be considerable, and the 
fact is not necessary to my case. But if the fact be as I have supposed, it takes 
away the last shadow of pretence, founded on the usage of legislation at that day, 
that such was the sense in which the word free was used in the constitution. I 
commend to the advocates of slavery, (on whom rests the burthen of proving the 
tneaning of the word,) the task of verifying or disproving the supposition. » 



ADDITIONAL ARGUMENTS ON THE WORD "FREE." 269 



ARGUMENT V. 

Even if the word "free" were taken in the sense correlative 
with slaves, and if the words " importation of persons" were taken 
to authorize the importation of slaves, shivery would, nevertheless, 
for the most part, be now unconstitutional. The constitution 
would then sanction the slavery of only those individuals who 
were slaves at the adoption of the constitution, and those who were 
imported as slaves. It would give no authority whatever for the 
enslavement of any born in the country, after the adoption of the 
constitution. 

The constitution is the supreme law of the land, and it operates 
" directly on the people and for their benefit.'"^ No State laws or 
constitutions can stand between it and the people, to ward off its 
benefits from them. Of course, it operates upon all the people, 
except those, if any, whom it has itself specially excepted from its 
operation. If it have excepted any from its operation, it has, at 
most, excepted only those particular individuals who were slaves 
at the adoption of the constitution, and those who should subse- 
quently be imported as slaves. It has nowhere excepted any that 
should thereafter be born in the country. It has nowhere author- 
ized Congress to pass laws excepting any who should be born in 
the country. It has nowhere authorized the States, or recognized 
the right of the States, to except from its operation any persons 
born in the country after its adoption. It has expressly prohibited 
the States from making any such exception ; for it has said that 
itself " shall be the supreme law of the land," (operating " di- 
rectly on the people, and for their benefit," the Supreme Court 
say,) " anything in the constitution or laws of any State to the 
contrary notwithstanding." If the States can say, previous to any 
one person's being born under the constitution, that, when born, 
the constitution shall not operate upon that person, or for his 
benefit, they may say in advance that it shall not operate upon, 
or for the benefit of, any person whatever who may be born under 
the constitution, and thus compel the United States government 
to die out, or fall into the hands of the naturalized citizens alone, 
for the want of any recruits from those born in the country. 

* The Sup. Court United States say, of " the government of the Union," that 
' its powers are granted liy the people, and are to be crerdsed directly on them," 
(that is, upon them as individuals,) " and for their benefit." — 4 Wheaton, 404, 40S. 

23* 



270 THE UNCONSTITUTIONALITY OF SLAVERY. 

If, then, ihe slavery of those who were slaves at the adoption 
of the constitution, and of those who have since been imported as 
slaves, were constitutional, the slavery of all born in the country 
since the adoption of the constitution, is, nevertheless, unconstitu- 
tional.* 



CHAPTER XXIV. 

POWER OF THE GENERAL GOVERNMENT OVER 
SLAVERY. 

It is a common assertion that the general government has no 
power over slavery .in the States. If by this be meant that the 
States ma^y reduce to slavery the citizens of the United States 
within their limits, and the general government cannot liberate 
them, the doctrine is nullification, and goes to the destruction of 
the United States government within the limits of each State, 
whenever such State shall choose to destroy it. 

The pith of the doctrine of nullification is this, viz., that a State 
has a right to interpose between her people and the United States 
government, deprive them of its benefits, protection, and laws, and 
annul their allegiance to it. 

If a State have this power, she can of course abolish the gov- 
ernment of the United States at pleasure, so far as its operation 
within her own territory is concerned ; for the government of the 
United States is nothing, any further than it operates upon the 
persons, property, and rights of the people.! If the States can 
arbitrarily intercept this operation, can interpose between the peo- 
ple and the government and laws of the United States, they can 
of course abolish that government. And the United States consti- 
tution, and the laws made in pursuance thereof, instead of being 
"the supreme law of the land," "anything in the constitution or 
laws of any State to the contrary notwithstanding," are dependent 
entirely upon the will of the State governments for permission to 
be laws at all. 

A State law reducing a man to slavery, would, if valid, interpose 

* See Chap. 13. 

+ The Supreme Court of the United States say, the " powers " of the general 
government " arc to be exercised directly on the people, and for their benejil." — 4 
Wheaton, 205. 



POWER OF THE GENERAL GOVERNMENT OVER SLAVERY. 271 

between him and the constitution and laws of the United States 
annul their operation, (so far as he is concerned,) and deprive him 
of their benefits. It would annul his allegiance to the United 
States ; for a slave can owe no allegiance to a government that 
either will not, or cannot protect him. 

If a State can do this in the case of one man, she can do it in 
the case of any number of men, and thus completely abolish the 
general government within her limits. 

But perhaps ii will be said that a State has no right to reduce 
to slavery the people generally within her limits, but only to hold 
in slavery those who were slaves at the adoption of the constitution, 
and their posterity. 

One answer to this argument is, that, at the adoption of the con- 
stitution of the United States, there was no legal or constitutional 
slavery in the States. Not a single State constitution then in 
existence, recognized, authorized, or sanctioned slavery. All the 
slaveholding then practised was .merely a private crime committed 
by one person against another, like theft, robbery, or murder. All 
the statutes which the slaveholders, through their wealth and influ- 
ence, procured to be passed, were unconstitutional and void, for 
the want of any constitutional authority in the legislatures to enact 
them. 

But perhaps it will be said, as is often said of them now, that 
the State governments had all power that was not forbidden to them. 
But this is only one of those bald and glaring falsehoods, under 
cover of which, even to this day, corrupt and tyrannical legislators 
enact, and the servile and corrupt courts, who are made dependent 
upon them, sustain, a vast mass of unconstitutional legislation, 
destructive of men's natural rights. Probably half the State legis- 
lation under which we live is of this character, and has no other 
authority than the pretence that the government has all power 
except what is prohibited to it. The falsehood of the doctrine is 
apparent the moment it is considered that our governments derive 
all their authority from the grants of the people. Of necessity, 
therefore, instead of their having all authority except what is for- 
bidden, they can have none except what is granted. 

Everybody adn)its that this is the true doctrine in regard to the 
United States government; and it is equally true of the State 
governments, and for the same reason. The United States con- 
stitution, (amendment 10,) does indeed specially provide that the 
U. S. government shall have no powers except what are delegated 



272 THE UNCONSTITUTIONALITY OF SLAVERY. 

to it. But this amendment was inserted only as a special guara 
against usurpation. The government would have had no addi- 
tional powers if this amendment had been omitted. The simple 
fact that all a government's powers are delegated to it by the peo- 
ple, proves that it can have no powers except what are delegated. 
And this principle is as true of the State governments, as it is of 
the national one ; although it is one that is almost wholly disre- 
garded in practice.* 

The State governments in existence in 1789 purported to be 
established by the people, and are either declared, or must be pre- 
sumed, to have been established for the maintenance of justice, the 
preservation of liberty, and the protection of their natural rights. 
And those governments consequently had no constitutional author- 
ity whatever inconsistent with these ends, unless some particular 
powers of that kind were explicitly granted to them. No power 
to establish or sustain slavery was granted to any of them. All 
the slave statutes, therefore, that were in existence in the States, 
at the adoption of the United States constitution, were unconstitu- 
tional and void ; and the people who adopted the constitution of the 
United States must be presumed to have known this fact, and acted 
upon it, because everybody is presumed to knoio the law. The 
constitution of the United States, therefore, can be presumed to 
have made no exceptions in favor of the slavery then existing in 
the States.! 

But suppose, for the sake of the argument, that slavery had been 
authorized by the State constitutions at the time the United States 
constitution was adopted, the constitution of the United States 
would nevertheless have made it illegal ; because the United States 
constitution was made " the supreme law of the land," " anything 

* The doctrine that the government has all power except what is prohibited to it, 
is of despotic origin. Despotic government is supposed to originate, and does in 
fact originate, with the despot, instead of the people ; and he claims all power over 
them except what they have from time to time wrested from him. It is a consist- 
ent doctrine that such governments have all power except what is prohibited to 
them. But where the government originates with the people, precisely the ojjpo- 
site doctrine is true, viz., that the government has no power except what is granted 
to it. 

t If, however, they had not known that the existing slavery was unconstitutional, 
and had proceeded upon the mistaken belief that it was constitutional, and had 
intended to recognize it as being so, such intended recognition would have availed 
nothing ; for it is an established principle, recognized by the Supreme Court of 
the United States, that "a legislative act, founded upon a mistaken opinion ot 
what was law, does not change the actual state of the law, as to pre-existing 
cases." — 1 Cranch, 1 ; Peter's Digest, 678. 



POWER OF THE GENERAL GOVERNMENT OVER SLAVERY, 273 

in the constitution or laws of any State to the contrary notwith- 
standing." It therefore annulled everything inconsistent with it, 
then existing in the State constitulious, as well as everything that 
should ever after be added to them, inconsistent with it. It of 
course abolished slavery as a legal institution, (supposing slavery 
to have had any legal existence to be abolished.) if slavery were 
inconsistent with anything expressed, or legally implied, in the 
constitution. 

Slavery is inconsistent, with nearly everything that is either 
expressed or legally implied in the constitution. All its express 
provisions are general, making no exception whatever for slavery. 
All its legal implicatioiis are that the constitution and laws of the 
United States are for the benefit of the ichole " people of the 
United States," and their posterity. 

The preamble expressly declares that " We the people of the 
United States" establish the constitution for the .purpose of secur- 
ing justice, iranquillitv, defence, welfare, and liberty, to " ourselves 
and our posterity." This language certainly implies that all " the 
people" who are parties to the constitution, or join in establishing 
it, are to have the benefit of it, and of the laws made in pursuance 
of it. The only question, then, is, who were " the people of the 
United States?" 

We cannot go out of the constitution to find who are the parties 
to it. And there is nothing in the constitution that can limit this 
word " people," so as to make it include a part, only, of " the peo- 
ple of the United States." The word, like all others, must be 
taken in the sense most beneficial for liberty and justice. Be- 
sides, if it did not include aZZ the then "people of the United 
States," we have no legal evidence whatever of a single individual 
whom it did include. There is no legal evidence whatever in the 
constitution, by which it can be proved that any one man was one 
of " the people," which will not also equally prove that the slaves 
were a part of the people. There is nothing in the constitution 
that can prove the slaveholders to have been a part of " the peo- 
ple," which will not equally prove the slaves to have been also a 
part of them. And there is as much authority in the constitution 
for excluding slaveholders from the description, " the people of the 
United States," as there is for excluding the slaves. The term 
" the people of the United States " must therefore be held to have 
included all " the people of the United States," or it can legally 
be held to have included none. 



274 THE UNCONSTITUTIONALITY OF SLAVERY. 

But this point has been so fully argued already, that it need not 
be dwelt upon here.* 

The United States government, then, being in theory formed 
by, and for the benefit of, the whole " people of the United States," 
the question arises, whether it have the power of securing to " the 
people" the benefits it intended for them? Or whether it is 
dependent on the State governments for permission to confer these 
benefits on "the people?" This is the whole question. And if 
it shall prove that the general government has no power of secur- 
ing to the people its intended benefits, it is, in no legal or reasona- 
ble sense, a government. 

But how is it to secure its benefits to the people ? That is the 
question. 

The first step, and an indispensable step, toioards doing it, is to 
secure to the people their personal liberty. Without personal lib- 
erty, none of the other benefits intended by the constitution can be 
secured to an individual, l>ecause, without liberty, no one can 
prosecute his other rights in the tribunals appointed to secure them 
to him. If, therefore, the constitution had failed to secure the 
personal liberty of individuals, all the rest of its provisions might 
have been defeated at the pleasure of the subordinate governments. 
But liberty being secured, all the other benefits of the constitution 
are secured, because the individual can then carry the question of 
his rights into the courts of the United States, in all cases where 
the laws or constitution of the United States are involved. 

This right of personal liberty, this sine qua non to the enjoyment 
of all other rights, is secured by the writ of habeas corpus. This 
writ, as has before been shown, necessarily denies the right of 
property in man, and therefore liberates all who are restrained of 
their liberty on that pretence, as it does all others that are restrained 
on grounds inconsistent with the intended operation of the consti- 
tution and laws of the United States. 

Next after providing for the " public safety, in cases of rebellion 
and invasion," the maintenance of courts for dispensing the priv- 
ileges of this writ is the duty first in order, and first in importance, 
of all the duties devolved upon the general government; because, 
next after life, liberty is the right most important in itself; it is 
also indispensable to the enjoyment of all the other rights which 



* Seo Part First, pag'cs 90 to 94, sec. edition. Also the argument under the " Sixth 
Rule of Interpretation," p. 182 to 189 ol' this part, and under the " Second Rule cited 
for Slavery," p. 214 to 21 G. 



POWER OF THE GENERAL GOVERNMENT OVER SLAVERY. 275 

the general government is established to secure to the people. All 
the other operations of government, then, are works of mere 
supererogation until liberty be first secured ; they are nothing but 
a useless provision of good things for those who cannot partake of 
them. 

As the government is bound to dispense its benefits impartially 
to all, it is bound, first of all, after securing " the public safety, in 
cases of rebellion and invasion," to secure liberty to all. And the 
whole power of the government is bound to be exerted for this 
purpose, to the 'postponement, if need he, of everything else save 
" the public safety, in cases of rebellion and invasion." And it is 
the constitutional duty of the government to establish as many 
courts as may be necessary, (no matter how great the number,) 
and to adopt all other measures necessary and proper, for bringing 
the means of liberation within the reach of every person who is 
restrained of his liberty in violation of the principles of the consti- 
tution.* 

"We have thus far, (in this chapter,) placed this question upon 
the ground that those held in slavery are constitutionally a part of 
♦'the people of the United States," and parties to the constitution. 
But, although this ground cannot be shaken, it is not necessary to 
be maintained, in order to maintain the duty of Congress to provide 
courts, and all other means necessary, for their liberation. 

The constitution, by providing for the writ of habeas corpus, 
without making any discrimination as to the persons entitled to it, 
has virtually declared, and thus established it as a constitutional 
principle, that, in this country, there can be no property in man ; 
for the writ of habeas corpus, as has before been shown,t necessa- 
rily involves a denial of the right of property in man. By declar- 
ing that the privilege of this writ " shall not be suspended, unless 
when, in cases of rebellion or invasion the public safety may re- 
quire it," the constitution has imposed upon Congress the duly of 
providing courts, and if need be, other aids, for the issuing of this 
writ in behalf of all human beings within the United States, who 
may be restrained on claim of being property. Congress are 

* It is not necessary, as some imagine, for Congress to enact a law making slavery 
ille£jal. Congress have no such power. Such a power would imply that slavery 
was now legal. Whereas il is now as much illegal as it is possible to be made by 
all the legislation in the world. Congress, assuming- that slavery is illegal, are 
constitutionally hound to provide all necessary means for having that principle 
maintained in practice. 

t Purl First, ch. 3. p. 101, 2;/ ed. 



276 THE UNCONSTITUTIONALITY OF SUBVERT. 

bound by the constitution to aid, if need be, a foreigner, an alien, 
an enemy even, who mjiy be restrained as property. And if the 
people of any of the civilized nations were now to be seized as 
slaves, on their arrival in this country, we can all imagine what 
an abundance of constitutional power would be found, and put 
forth, too, for their liberation. 

Without this power, the nation could not sustain its position a3 
one of the family of civilized nations ; it could not fulfil the law 
of nations, and would therefore be liable to be outlawed in conse- 
quence of the conduct of the States, For example. If the States 
can make slaves of anybody, they can certainly make slaves of 
foreigners. And if they can make slaves of foreigners, they can 
violate the law of nations ; because to make slaves of foreigners, 
is to violate the law of nations. Now the general government is 
the only government known to other nations ; and if the States 
can make slaves of foreigners, and there were no power in the 
general government to liberate them, any one of the States could 
involve the whole nation in the responsibility of having violated 
the law of nations, and the nation would have no means of reliev- 
ing itself from that resjwnsibility by liberating the persons en- 
slaved ; but would have to meet, and conquer or die in, a war 
brought upon it by the criminality of the State. 

This illustration is sufficient to prove that the power of the gen- 
eral government to liberate men from slavery, by the use of the 
writ of habeas corpus, is of the amplest character ; that it is not 
confined to the cases of those who are a part of " the people of the 
United States," and so j>arties to the constitution ; that it is limited 
only by the territory of the country ; and that it exists utterly 
irrespective of " anything in the constitution or laws of any 
State." 

This power, which is bound to be exerted for the liberation of 
foreigners, is bound to be exerted also for the liberation of persons 
born on the soil, even though it could be proved, (which it cannot,) 
that they are not legally parlies to the 'constitution. The simple 
fact of their not being parties to the constitution, (if that fact were 
proved,) would no more alter the power or duty of Congress in 
relation to securing them the privilege of the writ o{ habeas corpus, 
than the same fact does in the case of foreigners, who confessedly 
are not parties to the constitution ; unless, indeed, their coming 
into the country under the guaranty afforded by the habeas corpus 
clause of the constitution makes them, so far, parties to it. Bu 



POWER OF THE GENERAL GOVERNMENT OVER SLAVERY. 277 

this clause could operate as no guaranty of liberty to foreigners, 
unless it guarantied liberty to all born on the soil ; for, there being 
no distinction of persons made, it certainly could not be claimed 
that it guarantied greater privileges to foreigners than to the least 
favored of those born on the soil. So that it will still result that, 
unless the constitution, (as it may be executed by the general gov- 
ernment alone,) guaranties personal liberty to all born in the coun- 
try, it does not guaranty it to foreigners coming into the country ; 
and if it do not guaranty it to foreigners coming into the country, 
any single State, by enslaving foreigners, can involve the whole 
nation in a death struggle in support of such slavery. 

If these opinions are correct, it is the constitutional duty of 
Congress to establish courts, if need be, in every county and town- 
ship even, Avhere there are slaves to be liberated ; to provide attor- 
neys to bring the cases before the courts ; and to keep a standing 
military force, if need be, to sustain the proceedings. 

In addition to the use of the habeas corpus, Congress have power 
to prohibit the slave trade between the States, which, of itself, 
would do much towards abohshing slavery in the northern slave- 
holdmg States. They have power also to organize, arm, and dis- 
cipline the slaves as militia, thus enabling them to aid in obtaining 
and securing their own liberty. 

24 



APPENDIX A, 



FUGITIVE SLAVES, 

ITee following article was first published in 1850, as an appendix to an argument, entitle* 
** A Defence for Fcgitive Slaves, against the Acts of Congress of February, 12, 1793 
■avd September 18, 1850. By Ltsanber Spooneb." It repeatssome ideas already advanced 
"a the preceding |>ages ; hut, as it is mostly new, it has been thought worthy of preservatio* 
riy being included in this volume.] 

3i?EITIIER THE CONSTITUTION, NOR EITHER OF THE ACTS OF CONGRESS 0^ 
1"93 OR 1859, REQUIRES THE SURRENDER OF FUGITIVE SLAVES. 

In the preceding chapters it has been admitted, for the sake of the argument, 
that the constitution, and acts of Congress of 1793 aiKi 1850, require the delivery 
of Fugitive Slaves. But such really is not the fact. Neither the constitutional 
provision, nor either of said acts of Congress, uses the word slave, nor slavery, nor 
any language that can legally be made to apply to slaves. Th-e only " person " 
required by the constitution to be delivered up is described in the constitution as 
a "person held to service or labor in one state, uoder the laws thereof." This 
Sanguage is no legal description of a slave, and can be made to apply to a slave 
only by a vioiation of all the most imperative rules of interiii-etation by which the 
meaning of all legal instruments is to be ascertained. 

The Tvord ■" held" is a material word, in this description. Its legal meaniiig is 
synonymous with that of the words " bound," and " oblige<i." It is used in bonds, 
as synonymous with those words, and in no other sense. It \s also used in laws, and 
other legal instruments. And its legal meaning is to describe persons held by somt 
legal contract, obligation, dviy, or authority, which the law will enforce. Thus, in a. 
bond, a man acknowledges himself "held, and firmly bound and obliged" to do 
oertain things mentioned in the band, — and the law will compel a fulfilment of 
the obligation. The laws ^' hold " men to do various things ; and by holding them 
to do those things is meant that the laws will compel them to do them. AVherever 
a person is described in the laws as being ■" held" to do anything, — as to render 
■" service or labor," for example, — th« legal meaning invariably is that he is held 
by some legal contract, -obligation, duty, or authority, which the laws will enforce, 
— (either specifically, or by compelling payment of damages for non-performance.) 
I presume no single instance can be found, in any of the laws of this country, since 
its first settlement, in which the word " held " is used in any other than this legal 
sense, when used to describe a person who is " held " to do anything " under the 
laws." And such is its meaning, and its only meaning, in this clause of the con- 
stitution. If there could be a doubt on this point, that doubt would be removed by 
the additional words, " under the laws," and the word " due," as applied to the 
♦•service or labor," to which the person is "held." 

Now, a slave is not "held " by any legal conti-act, obligation, duty, or authority, 
which the laws will enforce. He is " held " only by brute force. One person 



280 APPENDIX A. 

beats another until the latter will obey him, work for liim if he require it, or do 
nothing if he require it. This is slavery, and the whole of it. This is the only 
manner in which a slave is " held to service or labor." 

The laws recognize no obligation on the part of the slave to labor for or serve his 
master If he refuse to labor, the law will not interfere to compel him. The 
master must do his own flogging, as in the case of an ox or a horse. The laws take 
no more cfjgnizance of the fact whether a slave labors or not, than they do of the 
fact whether an ox or a horse labors 

A slave, then, is no more " held " to labor, in any legal sense, than a man would 
be in Massachusetts, whom another person should seize and beat until he reduced 
him to subjection and obedience. If such a man should escape from his oi>pressor, 
and take refuge in Carolina, he could not be claimed under this clause of the con- 
stitution, because he would not be " held " in any legal sense, (that is, by any legal 
contract, obligation, duty, or authority,) but only by brute force. And the same 
is the ease in regard to slaves.* 

It is an established rule of legal interpretation, that a word useel in laws, to 
describe legal rights, must be taken in a legal sense. This rule is as imperative iu 
the interpretation of the constitution as of any other legal instrument. To prove 
this, let us take another example. The constitution (Art. I. See. (1) provides that 
" for anj' sijeeoh or debate in either koase, they (the senators and representatives) 
shall not be. quentiimed in any other place." Now, this provision imposes no restric- 
tion whatever upon the senators and representatives being "■ questioned for any 
speech or debate," by anybody and everybody, who may jslease to question them,, 
or in any and every place, with this single exception, that they must not " be 
questioned " legally, — that is, they must not be held to any legal accountability. 

It would be no more absurd to construe this provision about (jmextirmirog senators 
and representatives, so as to make it forbid the people, in theiir private capacity, 
to ask any questions of their senators and representatives,, on their return from 
Congress, as to their doings there, instead of making it apply to a legal responsi- 
bility, than it is to construe the words "-held to service or labor " as api>lied to & 

* In a s(x>ech, in the Senate of the United States, upon the FuRitive Slave bUL, so ealied, on 
the 19th day of August, 1S60, (as- rev>orte<i in the Washirscrton Union and Xational Intelli- 
gencer,) seniitor Mason, of \irainiii, the chairoaan of the comraittee that repotted the bill, and 
the principaj champion of She bill m the Senate, in describing; "the actual evils ancle? which 
the slave St;ites \alx>v in i-efereiice to the reclaDiatii>n of these fugitives^" said :. 

"Then, ajjain, it is proposed [,l>y one of the opponents- o£ tlje bill];, as a past of tJie proof to 
he addiiceil at the lieaving, aftei- the fufritive has been recaptui'ed, that evkfence shall be 
brought by tlw claisant to shmv ttuit slaveiy is estabJisbed in the state tioai which the fugi- 
»ive has abscoivletL Now, this very thing, in a recent case in the city of New Yoik, was- 
lequired by one of the judges of that state, which case attracted the attention of the author- 
ities of Maryland, and against which they protested, because of the iiulsgnities beapod upoiv 
their citizens, and the losses which they sustairved in th;it city. In that casiv the judge of the 
state court required proof tliat sUiverj was established in Maryland, and went so Cu as to say 
that the oidy mode of pj-oving it was by reference to the sHatute-ljook. Such piioof is required 
in the senatoi-'s amendment -, and, if he means by this that pronf shall be brought that slavery 
is established by existing Liws, it is impossibJe to coTtiply with the reqiiisitionyfor u& such 
proof can be produced, I apprehend, in anif of the stays states. I am not aware thai 
there is a siug-/c state in which the institutian is estabJisked btf poeiiive lai'f. On a for- 
mer occasion, and on a different topic, it was my ditty to endeavor to show to the senate that 
no such law was necessary for its establishment ; certainly, none could be found, and nsmt 
was required, in amif of the states of the Union." 

I am confident that Mr Calhoun maile the same admission within two or three years lasft 
past, but I have not the paper containing it at h<»n4. 



APPENDIX A. 281 

person held simply by brute force, (as in the case supposed in Massachusetts,) 
instead of persons held by some legal contract, obligation, or duty, which the law 
will enforce. 

As the slave, then, is " held to service or labor " by no contract, obligation, or 
duty, which the law will enforce, but only by the brute force of the master, the 
provision of the constitution in regard to " persons held to service or labor " can 
have no more legal application to him than to the person supposed in Massachu- 
setts, who should at one time be beaten into obedience, and afterwards escape into 
Carolina. 

The word " held " being, in law, synonymous with the word " bound," the descrip- 
tion, "person held to service or labor," is synonymous with the description in 
another section, (Art. 1, Sec. 2,) to wit, " those bound to service for a term of 
years." The addition, in the one case, of the words "for a term of years," does 
not alter the meaning ; for it does not appear that, in the other case, they are 
" held " beyond a fixed term. 

In fact, everybody, courts and people, admit that " persons bound to service for 
a term of years," as apprentices, and other indented servants, are to be delivered 
up under the provision relative to " persons held to service or labor." The word 
" held," then, is regarded as synonymous with "bound," whenever it is wished to 
deliver up "persons bound to service." If, then, it be synonymous with the word 
" bou7id," it applies only to persons who are " bound " in a legal sense, — that is, 
by some legal contract, obligation, or duty, which the law will enforce. The words 
cannot be stretched beyond their necessary and proper legal meaning ; because all 
legal provisions in derogation of liberty must be construed strictly. The same 
words that are used to describe a " person held to service or labor " by a legal con- 
tract, or obligation, certainly cannot be legally construed to include also one who 
is " held " only by private violence, and brute force. 

Mr. Webster, in his speech of March 7th, 1850, admits that the word " held " is 
synonymous with the word " bound," and that the language of the constitution 
itself contains no requirement for the surrender of fugitive slaves. He says ; 

" It may not be improper here to allude to that — I had almost said celebrated 
— opinion of Mr. Madison. You observe, sir, that the term slavery is not used in the 
constitution. The constitution does not require that fugitive slaves shall be delivered up; 
it reijui.'es that persons bound to service in one state, and escaping into another, shall be 
diii'-ired up. Mr. Madison opposed the introduction of the terra slave or slavery 
into the constitution ; for he said he did not wish to see it recognized by the con- 
stitution of the United States of America that there could be property in men." 

Had the constitution required only that " persons bound to service or labor " 
should be delivered up, it is evident that no one would claim that the provision 
applied to slaves. Yet it is perfectly evident, also, that the word "held" ii 
simply synonymous with the word "bound." 

One can hardly fail to be astonished at the ignorance, fatuity, cowardice, or cor- 
ruption, that has ever induced the North to acknowledge, for an instant, any con- 
stitutional obligation to surrender fugitive slaves. 

The Supreme Court of the United States, in the Prigg case, (the first case in 
which this clause of the constitution ever came under the adjudication of that 
court,) made no pretence that the language itself of the constitution atfurded any 
justification for a claim to a fugitive slave. On the contrary, they made the auda- 
cious and atrocious avowal, thai, lor the sole purpose of making the clause apply to 
slaTes, they would disregard — as they acknowledged themselves obliged to disre- 

24=^ 



282 APPENDIX A 

gard — all the primary, established and imperative rules of legal Interpretatioa, 
end be governed xohly by the history of men's intentions, ovXside of the constitution. 
Thus they say : 

" Before, however, we proceed to the points more immediately before us, it may 
be well — in order to clear the case of diffi,culty — to say that, in the exposition of 
this part of the constitution, we shall limit ourselves to those considerations which 
appropriately and exclusively belong to it, without laying down any rules of inter- 
pretation of a more general nature. It will, indeed, probably, be found, when we 
look to the character of the constitution itself, the objects which it seeks to attain, 
the powers which it confers, the duties which it enjoins, and the rights which it 
secures, as well as the known historical fact that many of its provisions were mat- 
ters of compromise of opposing interests and opinions, that no unform rule of inter- 
pretation can be applied to it, which may not allow, even if it does not positively demand, 
many modifications in its actual application to particular clauses. And perhaps the 
safest rule of interpretation, after all, will be found to be to look tii the nature and 
objects of the particular powers, duties, and rights, with all the lights and aids of 
contemporary history; and to give to the words of each just such operation and force, 
consistent with their legitimate meaning, as may fairly secure and attain the ends 
proposed. * * * Historically, it is well known that the object of this clause 
was to secure to the citizens of the slaveholding states the complete right and title 
of ownership in their slaves, as property, in every state in the Union into which 
they might escape from the state where they were held in servitude." — 16 
Peters, GIU— 11. 

Thus it will be seen that, on the strength of history alone, they assume that 
"■ many of the provisions of the constitution were matters of compromise " (that is, in 
"•egard to slavery) ; but they admit that the words of those provisions cannot be 
iciade to express any such compromise, if they are interpreted according to any 
" uniform rule of interpretation,^' or " any rules of interpretation of a more general 
nature" than the mere history of those particular clauses. Hence, "in order to 
.■ear the case of (thai) difficulty," they conclude that "perhaps the safest rule of inter- 
■iretation, after all, will be found to be to look to the nature and objects of the particular 
iowers, duties, and rights, with all the lights and aids of contemporary history; and to 
give to the words of each just such operation and force, consistent with their legitimate 
meaning, as may fairly secure and attain the ends proposed." 

The words " consisteru with their legitimate meaning " contain a deliberate false- 
hood, thrown in by the court from no other motive than the hope to hide, in some 
measure, the fraud they were perpetrating. If it had been " consistent with the 
legitimate meaning of the words " of the clause to apply them to slaves, there would 
have been no necessity for discarding, as they did, all the authoritative and inflex- 
ible rules of legal interpretation, and resorting to history to find their meaning. 
They discarded those rules, and resorted to history, to make the clause apply to 
slaves, for no other reason whatever than that such meaning was not " consistent 
ivith the legitimate meaning of the words." It is perfectly apparent that the 
moment their eyes fell upon the " words " of the clause, they all saw that they 
contained no legal description of slaves. 

Stripped, then, of the covering which that falsehood was intended to throw over 
their conduct, the plain English of the language of the court is this : that history 
tells us that certain clauses of the constitution were intended to recognize and 
support slavery ; but, inasmuch as such is not the legal meaning of the words of 
those clauses, if interpreted by the established rules of interpretation, we will. •' in 
order to clear the case of (that) difficulty," ^nsl discard those rules, and pervert the 
words so as to make them accomplish whatever ends history tells us were intended 
to be accomplished by them. 



APPENDIX A. 283 

It was only by such a naked and daring fraud as this that the court could maks 
the constitution authorize the recovery of fugitive slaves. 

And what were the rules of interpretation which they thus discarded, " in ordei 
to clear the case of difficulty," and make the constitution subserve the purposes of 
slavery 1 One of them is this, laid down by the Supreme Court of the United 
States : 

" The intention of the instrument must prevail ; this intention must be collected 
from its words." — 12 Wkeaton, 332. 

Without an adherence to this rule, it is plain we could never know what was, 
and what was not, the constitution. 

Another rule is that universal one, acknowledged by all courts to be imperative, 
that language must be construed strictly in favor of liberty and justice. 

The Supreme Court of the United States have laid down this rule in these strong 
terras : 

" Where rights are infringed, where fundamental principles are overthrown, 
where the general system of the laws is departed from, the legislative intention 
must be expressed with irresistible clearness, to induce a court of justice to suppose 
a design to eifect such objects." — United States vs. Fisher, 2 Cranch, 3'J(). 

Story delivered this opinion of the court, (in the Prigg case,) discarding all other 
rules of interpretation, and resorting to history to make the clause apply to slaves. 
And yet no judge has ever scouted more contemptuously than Story the idea of 
going out of the words of a law, or the constitution, and being governed by what 
history may say were the intentions of the authors. He says : 

"Such a doctrine would be novel and absurd. It would confuse and destroy all 
the tests of constitutional rights and authorities. Congress could never pass any 
law without an inquisition into the motives of every member ; and even then they 
might be reexaminable. Besides, what possible mea^ can there be of making 
such investigations 1 The motives of many of the members may be, nay, must be, 
utterly unknown, and incapable of ascertainment by any judicial or other inquiry; 
they may be mixed up in various manners and degrees ; they may be opposite to, 
or wholly independent of, each other. The constitution would thus depend upon 
processes utterly vague and incomprehensible ; and the written intent of the legis- 
lature upon its words and acts, the lex scripta, would be contradicted or obliterated 
by conjecture, and parole declarations, and fleeting reveries, and heated imagin- 
ations. No government on earth could rest for a moment on such a foundation. 
It would be a constitution of sand, heaped up and dissolved by the flux and reflux 
of every tide of opinion. Every act of the legislature [and, fur the same reason 
also, every clause ot the constitution] must, therefore, be judged of from its objects 
and intent, as they are embodied in its provisions." — 2 Story's Conim., 534. 

Also, he says . 

" The constitution was adopted by the people of the United States ; and it was 
submitted to the whole, upon a just survey of its provisions, as they stood in the 
text itself. * * Opposite interpretations, and different explanations of diferent 
provisions, may well be presumed to have been presented in different bodies, to 
remove local objections, or to win local favor. And there can be no certainty 
either that the ditferent state conventions, in ratifying the constitution, gave the 
same uniform interpretation to its language, or that, even in a single state conven- 
tion, the same reascming prevailed with a majority, much less with, the whole, of 
the supporters of it. * * It is not to be presumed that even in the convention 
which framed the constitution, from the causes above mentioned, and other causes, 
the clauses were ahvaj-s understood in the same sense, or had precisely the same 
extent of operation. Every member necessarily judged for himself ; and the 
judgment of no one could, or ought to be, conclusive upon that of others. * » * 
Nothing hut the text itself was adopted by the people. * * Is the sense of the consti' 
tvtion to be ascertained, not by its own text, but by th» ' probable meaning ' to bo 



284 APPENDIX A. 

gathered by conjectures from scattered documents, from private papers, from the 
table-talk of some statesmen, or the jealous exaggerations of others 1 Is the con- 
stitution of the United States to be the only instrument which is not to be inter- 
preted by what is written, but by probable guesses, aside from the text 1 What 
would be said of interpreting a statute of a state legislature by endeavoring to find 
out, from private sources, the objects and opinions of every member ; how every 
one thought ; what he wished ; how he interpreted it '? Suppose different persons 
had ditferent opinions, — what is to be done ■? Suppose dilferent persons are 
not agreed as to the ' probable meaning ' of the framers, or of the peojilu, — what 
interpretation is to be followed 1 These, and many questions of the same sort, 
might be asked. It is obvious that there can he no security to the people in any con- 
stitution, of government, if they are not to judge of it by the fair meaning of the words 
of the text, but the words are to be bent and broken by the ^probable meaning ' of persons 
whom they ni.ver knew, and whose opinions, and means of information, may be no better 
than their own ? The people adopted the constitution according to the wjrds of the teit 
in their reasonable interpretation, and not according to the private interpretation of any 
particular men." — 1 Story's Comm. on Const., 287 to 392. 

And Story has said much more of the same sort, as to the absurdity of relying 
upon " history " for the meaning of the constitution. 

It is manifest that, if the meaning of the constitution is to be warped in the least, 
it may be warped to any extent, on the authority of history ; and thus it would 
follow that the constitution would, in reality, be 7nade by the historians, and not by 
the people . It would be impossible for the people to make a constitution which 
the historians might not change at pleasure, by simply asserting that the people 
intended tlius or so. 

But, in truth. Story and the court, in saying that history tells us that the clause 
of the constitution in question was intended to apply to fugitive slaves, are nearly 
as false to the history of the clause as they are to its law. 

There is not, I presume, a word on record (for I have no recollection of having 
ever seen or heard of one) that was uttered, either in the national convention that 
framed the constitution, or in any northern state convention that ratified it, that 
shows that, at the time the constitution was adopted, any northern man had the least 
suspicion that the clause of the constitution in regard to " persons held to service 
or labor " was ever to be applied to slaves. 

In the national convention, " Mr. Butler and Mr. Pinckney moved to require 
' fugitive slaves and servants to be delivered up like criminals.' " " Mr. Sherman 
saw no more propriety in the public seizing and surrendering a, slave or servant than 
a horse." — Madison papers, 1417 — 8. ' 

In consequence of this objection, the provision was changed, and its language, 
as it now stands, shows that the claim to the surrender of slaves was abandoned, 
and only the one for servants retained.* 

It does not appear that a word was ever uttered, in the National Convention, to 
show that any member of it imagined that the provision, as finally agreed upon, 
would apply to slaves. 

But, after the national convention had adjourned, Mr. Madison and Mr. Randolph 
went home to Virginia, and Mr. Pinckney to South Carolina, and, in the state con- 
ventions of those states, set up the pretence that the clause was intended to apply 
to slaves. I think there is no evidence that any other southern member of the 
national convention followed their example. In North Carolina, Mr. Iredell (not 

• Servants were, at that time, a very numerous class in all the states ; and there were many 
laws respecting them, all treating them as a distinct class from slaves. 



APPENDIX A. 285 

a member of the national convention) said the provision was intended to refer to 
slaves ; hut that " the northern delegates, owing to their particular scruples on the 
subject of slavery, did not choose the word stave to be mentioned." 

I think the declarations of these four men — Madison, Randolph, Pinckney, and 
Iredell — are all the " history " we have, that even southern men, at that time, 
understood the clause as applying to slaves. 

In the northern conventions no word was ever uttered, so far as we have any 
evidence, that any man dreamed that this language would ever be understood as 
authorizing a claim for fugitive slaves. It is incredible that it could have passed 
the northern conventions without objection, (indeed, it could not have passed them 
at all,) if it had been understood as requiring them to surrender fugitive slaves ; 
for, in several of them, it was with great difliculty that the adoption of the consti- 
tution was secured when no such objection was started. 

The construction placed upon the provision at the present day is one of tho 
many frauds which the slaveholders, aided by their corrupt northern accomplices, 
have succeeded in palming off upon the north. In fact, the south, in the conven- 
tion, as it has ever done since, acted upon the principle of getting by fraud what 
it could not openly obtain. It was upon this principle that Mr. Madison acted 
when he said that they ought not to admit, in the constitution, the idea that there 
could be property in man. He would not admit that idesi in the. constitution itself , 
but he immediately went home, and virtually told the state convention that that 
was the meaning which he intended to have given to it in practice. He knew well 
that if that idea were admitted in the instrument itself, the north would never 
adopt it. He therefore conceived and adhered to the plan of having the instru- 
ment an honest and free one in its terms, to secure its adoption by the north, and 
of tlien trusting to the fraudulent interpretations that could be accomplished after- 
ward, to make it serve the purposes of slavery. 

Further proof of his fraudulent purpose, in this particular, is found in the fact 
that he wrote the forty-second number of the Federalist, in which he treats of " tho 
powers which provide for the harmony and proper intercourse among the states." 
But he makes no mention of the surrender of fugitives from " service or labor," a3 
one of the means of promoting that " harmony and proper intercourse." He did 
not then dare say to the north that the south intended ever to apply that clause to 
slaves. 

But it is said that the passage of the act of 1793 shows that the north under- 
stood the constitution as requiring the surrender of fugitive slaves. That act is 
supposed to have passed without opposition from the north ; and the reason was 
that it contained no authority for, or allusion to, the surrender of fugitive slaves ; 
but only to fugitives from justice, and "persons held to service or labor." The 
south had not at that time become sufficiently audacious to make such a demand. 
And it was twenty-three years, so far as I have discovered, (and I have made 
reasonable search in the matter,) after the passage of that act, before a slave wag 
given up, under it, in a,ny free state, or the act was acknowledged, by the Supreme 
Court of Sinjfree state, to apply to slaves. 

In 1795, two years after the passage of the act of Congress, and after the con- 
stitution had been in force six years, a man was tried in the Supremo Court of 
Pennsylvania, on an indictment, under a statute of the state, against seducing or 
carrying negroes or mulattoes out of the state, with the intention to sell them, or 
keep them, as slaves. 



286 APPENDIX A. 

" Upon tbe evidence in support of the prosecution, it appeared that negro Toby 
had been brought upon a temporary visit to Philadelphia, as a servant in the family 
of General Sevier, of the State of Virginia ; that, when General Sevier proposed 
returning to Virginia, the negro refused to accompany him ;" but was afterwards 
farcihly carried out of the state. It appeared also, in evidence, that it was proposed 
by Richards, the defendant, that the negro be enticed into New Jersey, (a slave 
state,) and there seized and carried back to Virginia. 

" The evidence on behalf of the defendant proved that Toby was a slave, 
belonging to the father of General Sevier, who had Jent him to his son merely for 
the journey to Philadelphia." 

The defendant was found not guilty, agreeab'y to the charge of the Chief Justice; 
and what is material is, that the case was tried wholly under the laws of Pennsyl- 
vania, which permitted any traveller who came into Pennsylvania, upon a tempo- 
rary excursion for business or amusement, to detain his slave for six mo7iths, and 
entitled him to the aid of the civil police to secure and carry him away. — Respub- 
lica vs. Richards, 2 Dallas, 224. 

Not one word was said, by either court or counsel, of the provision of the United 
States constitution in regard to " persons held to service or labor," or the act of 
1793, as having aily application to slaves, or as giving any authority for the recov- 
ery of fugitive slaves. Neither the constitution nor the act of Congress was 
mentioned in connection with the subject. 

Is it not incredible that this should have been the case, if it had been under- 
stood, at that day, that either the constitution or the act of 1793 applied to slaves 1 

Would a mau have used force in the case, and thus subjected himself to the risk 
of an indictment under the state laws 1 or would there have been any proposition 
to entice the slave into a slave state, for the purpose of seizing him, if it had been 
understood that the laws of the United States were open to him, and that every 
justice of the peace (as provided by the act of 1793) was authorized to deliver up 
the slave 1 

It cannot reasonably be argued that it was necessary to use force or fraud to take 
the slave back, for the reason that he had been brought, instead of having escaped, 
into Pennsylvania ; for that distinction seems not to have been thought of until 
years after. The first mention I have found of it was in 1806. — Butler vs. 
Hopper, 1 Washington, C. C. R. 499. 

In 1812 it was first acknowledged by the Supreme Court of New York that the 
act of 1793 applied to slaves, although no slave was given up at the time. But 
New York then had slaves of her own. — Glen vs. Hodges, 9 Johnson, 67. 

In 1817 the Supreme Court of Pennsylvania first acknowledged that the consti- 
tution and the act of 1793 applied to slaves. But no slave was then given up. — 
Commonwealth vs. Holloway, 2 Sargent and Rawle, 305. , 

In 1823 the Supreme Court of Massachusetts first acknowledged that the consti- 
tutional provision in regard to " persons held to service or labor " applied to slaves. 
— Commonwealth vs. Griffith, 2 Pickering, 11. 

Few, if any, slaves have ever been given up under the act of 1793, in the free 
states, until within the last twenty or thirty years. And the fact furnishes ground 
for a strong presumption that, during the first thirty years after the constitution 
went into operation, it was not generally understood, in the free states, that the 
constitution required the surrender of fugitive slaves. 

But, it is said that the ordinance of 1787, passed contemporaneously with tho 



APPENDIX A. 287 

formation of the constitution, requires the delivery of fugitive slaves, and that the 
constitution ought to be taken in the same sense. The answer to this allegation 
is, that the ordinance does not require the delivery of fugitive slaves, but only of 
persons " from whom service or labor is lawfully claimed." This language, 
certainly, is no legal description of a slave. 

But beyond, and additional to, all this evidence, that the constitution does not 
require the surrender of fugitive slaves, is the conclusive and insuperable fact, that 
there is not now, nor ever has been, any legal or constitutional slavery in thia 
country, from its first settlement. All the slavery that has ever existed, in any 
of the colonies or states, has existed by mere toleration, in defiance of the funda- 
mental constitutional law. 

Even the statutes on the subject have either wholly failed to declare who might 
and who might not be made slaves, or have designated them in so loose and imper- 
fect a manner, that it would probably be utterly impossible, at this day, to prove, 
under those statutes, the slavery of a single person now living. Mr. Mason admits 
as much, in the extracts already given from his speech. 

But all the statutes on that subject, whatever the terms, have been unconstitu 
tional, whether passed under the colonial charters, or since under the state gov- 
ernments. They were unconstitutional under the colonial charters, because those 
charters required the legislation of the colonies to " be conformable, as nearly aa 
circumstances would allow, to the laws, customs and rights, of the realm of Eng- 
land." Those charters were the fundamental constitutions of the colonies, and, 
of course, made slavery illegal in the colonies, — inasmuch as slavery was incon- 
sistent with the "laws, customs, and rights, of the realm of England.* 

There was, therefore, no legal' slavery in this country so long as we were colonies, 
— that is, up to the time of the Revolution. 

After the Declaration of Independence, new constitutions were established in 
eleven of the states. Two went on under their old charters. Of all the new con- 
stitutions that were in force at the adoption of the constitution of the United States 
in 1789, not one authorized, recognized or sanctioned, slavery. f All the recog- 

* Washburn, in his "Judicial History of Massachusetts," (p. 202,) says : 

" As early as 1770, and two years previous to the decision of Somersett's case, so famous in 
England, the right of a master to hold a slave had been denied, by the Superior Court of Mas- 
sachusetts, and ujjon the same grounds, substantially, as those upon which Lord MansfiekJ 
discharged Somersett, when his case came before him. The case here alluded to was James 
vs. Lechmere, brought by the plaintiff, a negro, against his master, to recover his freedom." 

t Perhaps it may be claimed by some that the constitution of South Carolina was an excep- 
tion to this rule. By that constitution it was provided that the qualifications of members of 
the Senate and House of Representatives " shall be the same as mentioned in the election 
act." 

"The election act" was an act of the Provincial Assembly, passed in 1759, wliich provided 
that members of the Assembly " shall have in this province a settled plantation, or freehold 
estate, of at least five hundred acres of land, and twenty slaves." 

But this act was necessarily void, so far as the requirement in regard to slaves was con 
cerned ; because, slavery being repugnant to the laws of England, it could have no legal 
existence in the colony, which was restricted from making any laws, except such as were 
conformable, as nearly as circumstances would siUow, to the laws, statutes, and rights, of the 
realm of England. 

This part of the act, then, being void at the time it was passed, and up to the time of the 
adoption of the constitution of the state, the provision in that constitution could not legally be 
held to give force to this part oj the act. Besides, there could be no slaves, legally speaking 
in 1778, for the act to refer to. 



288 APPENDIX A. 

niiions of slavery thai are now to be found in any of the state constitutions, have been 
inserted since the. adoption of the constitution of the United States, 

There was, therefore, no legal or constitutional slavery, in any of the states, up 
to the time of the formation and adoption of the constitution of the United States, 
in 1787 and 1789. 

There being no legal slavery in the country at the adoption of the constitutiou 
of the United States, all " the people of the United States " became legally parties 
to that instrument, and, of course, members of the United States government, by 
its adoption. The constitution itself declares, that "We, the people of the United 
States, * * do ordain and establish this constitution." The term " people," 
of necessity, includes the whole people ; no exception being made, none can be 
presumed ; for such a presumption would be a presumption against liberty. 

After " the people " of the whole country had become parties to the constitution 
of the United States, their rights, as members of the United States government, 
were secured by it, and they could not afterwards be enslaved by the state gov- 
ernments ; for the constitution of the United States is " the supreme law," (oper- 
ating " directly on the people, and for their benefit," says the Supreme Court, 4 
[Vheaton, 404 — 5,) and necessarily secures to all the people individually all the 
rights it intended to secure to any ; and these rights are such as are incompatible 
with theii- being enslaved by subordinate governments. 

But it will be said that the constitution of the United States itself recognizes 
slavery, to wit, in the provision requiring " the whole number of free persons," and 
" three-fifths of all other persons," to be counted, in making upthe basis of repre- 
Bentation and taxation. Uut this interpretation of the word " free " is only another 
of the fraudulent interpretations which the slaveholders and their northern accom- 
plices have succeeded in placing upon the constitution. 

The legal and technical meaning of the word " free," as used in England for 
centuries, has been to designate a native or naturalized member of the state, as 
distinguished from an alien, or foreigner not naturalized. Thus the term "free 
British subject " means, not a person who is not a slave, but a native born or 
naturalized subject, who is a member of the state, and entitled to all the rights of 
a member of the state, in contradistinction to aliens, and persons not thus entitled. 

The word " free " was used in this sense in nearly or quite all the colonial 
charters, the fundamental constitutions of this country, up to the time of the 
revolution. In 1787 and 1789, when the United States constitution was adopted, the 
word "free " was used in this political sense in the constitutions of the three sluvcholding 
states, Georgia, South Carolina, and North Carolina. It was also used iji this sense 
in the articles of Confederation. 

The word "free" was also used in this political sense in the ordinance of 1787, 
in four ditferent instances, to wit, three times in the provision fixing the basis of 
representation, and once in the article of compact, which providea that when the 
states to be formed out of the territory should have sixty thousand /ree inhabitants 
they should be entitled to admission into the confederacy. 

That the word " free " was here used in its political sense, and not as the correl- 
ative of slaves, is proved by the fact that the ordinance itself prohibited slavery in 
the territory. It would have been absurd to use the word " free " as the corrol- 
ative of slaves, when slaves were to have no existence under the ordinance. 

This political meaning which the word " free " had borne in the English law, 
Uid in all the constitutional law of this country, up to the adoption of the consti- 



APPENDIX A. 289 

tution of the United States, was the meaning which all legal rules of interpretation 
required that Congress and the courts should give to the word in that instrument. 

But we are told again that the constitution recognizes the legality of the slave- 
trade, and, by consequence, the legality of slavery, in the clause respecting the 
" importation of persons." But the word " importation," when applied to " per 
sons," no more implies that the persons are slaves than does the word " transport- 
ation." It was perfectly imderstood, in the convention that framed the consti- 
tution, — and the language was chosen with special care to that end, — that there 
was nothing in the language itself that legally recognized the slavery of the 
persons to be imported ; although some of the members, (how many we do not 
know,) while choosing language with an avowed caution against " admitting, in 
the constitution, the idea that there could be property in man," intended, if they 
eould induce the people to adopt the constitution, and could then get the control of 
the government, to pervert this language into a license to the slave-trade. 

This fraudulent perversion of the legal meaning of the language of the consti- 
tution is all the license the constitution ever gave to the slave-trade. 

Chief Justice Marshall, in the case of the brig Wilson, (1 Brockmbrough, 433 — 5,) 
held that the words "import" and "imported," in an act of Congress, applied to 
free persons as well as to slaves. If, then, the word " importation," in the consti 
tution, applies properly to free persons, it certainly cannot imply that any of the 
persons imported are slaves. 

If the constitution, truly interpreted, contain no sanction of slavery, the slaves) 
of this country are as much entitled to the writ of habeas corpiis. at the handi cf the 
United States government, as axe the whites. 

25 



THE 



UNCONSTITUTIONALITY OF SLAVEHY. 



ENLAHGED EDITION. 



By LYSANDER SPOONER 



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NOTICES. 

HON. WILLIAM H. SEWARD write.* to Genit Smith concerning it as follows: 

" AuuuRN, November 9th, 1855. 

My Dear Sir : I thank you for sending me a copy of Mr. Spooner's treatise. I had 
bought a copy of the first edition. It is a very able work, and I wish that it might be uni- 
versally studied. The writing and publishing of such books is the most effective way of 
working out the great reformation which this nation is required to make by the spirit of 

humanity. 

Very sincerely your friend and obedient servant, 

WILLIAM U. SEWARD. 
The Honorable Gerrit Smith." 
HON. ALBERT G. BROWN, Senator in Congress from Mississippi , ia the Senate, Dec. 



11 UNCONSTITUTIONALITY OF SLAVERY. 

2d, 1856, (as reported in the Congressional Globe) after describing tlie book, as " making an 
argument in favor of the Constitutional power of Congress, not only to interfere with, but 
to abolish, slavery in the southern States of the Union/' said : 

" The Senator [Wilson] did not say, — vrhat I am willing to say myself — that the book 
is ingeniously written. No mere simpleton could ever have drawn such an argument. If 
his premises were admitted, I sliould say at once that it would be a herculean task to over- 
turn his argument." 

[Although Mr. Brown thus leaves it to be inferred that he thouglit there might be 
some error in the premises, he made no attempt to point out any. It would seem to be 
incumbent on him to do so.] 

GERRIT SMITH says : " The more I read that admirable, invincible, and matchless ar- 
gument, which Ly Sander Spooner has made to show the unconstitutionality of slavery, the 
more I am pleased with it. He yields nothing but what the legal rules of interxiretation 
compel him to yield. And why should he make unnecessary concessions in an argument 
undertaken in behalf of all that is sacred and vital in the rights of man ? Were I studious 
of fame or usefulness, I had rather be the author of this manly, brave, and independent ar- 
gument against the constitutionality of slavery, than of any other law argument ever writ- 
ten, either in this age, or in any former age — either on this side, or on the other side, of 
the Atlantic. Why will not all lawyers read it ? Who of them could read it without being 
convinced that slavery is unconstitutional ? " 

WENDELL PHILLIPS, without confessing his conviction of its truth, says: "This 
claim (of the anti-slavery character of the constitution) has received the fullest investigation 
from Mr. Lysander Spooner, who has urged it with all his unrivalled ingenuity, laborious 
research, and close logic." 

ELIZUR WRIGHT calls it " One of the most magnificent constitutional arguments ever 
produced in any country. It needs such a work as Mr. Spoocer's oa constitutional law, to 
make the constitution of the least value to us as a shield of rights." 

WILLIAM LLOYD GARRISON, speaking of Part First, and disagreeing to its conclu- 
sions, on the ground that the words of the constitution do not fully express the intentions 
of its authors, yet says : " His logic may be faultless, as a mere legal effort. We admit Mr 
Spooner's reasoning to be ingenious; perhaps, as an effort of logic, unanswerable. It im- 
pi-esses us as the production of a mind equally honest and acute. Its ability, and the im- 
portance of the subject on which it treats, will doubtless secure for it a vc'nie circulation and 
a careful perusal." 

JOSHUA LEAVITT says, of Part First : '• It is unanswerable. There will never be an 
honest attempt to answer it. Neither priest nor politician, lawyer nor judge, will ever dare 
undertake to sunder that iron-linked chaiu of argument, which runs straight through this 
book from beginning to end." 

NATHANIEL P. ROGERS, speaking of Part First, and agreeing with some of its posi- 
tions, and disagreeing with others, says : " It is a splendid essay. If the talent laid out in 
it were laid out in the bar, it would make the author distinguished and rich." " This essay 
should give the author a name at the Boston bar. It will at the bar of posterity." 

SAMUEL E. SEWALL, Esq., says of Part First: — "It merits general attention, not 
merely from the importance of the subject, but from the masterly manner in which it is 
handled. It everywhere overflows witli thought. We regard it as a great arsenal of legal 
weapons to be used in the great contest between liberty and slavery. I hope it will receive 
the widest circulation." 

J. FULTON, Jr., says of Part First : " Now that I have read it, I feel bound to say 



UNCONSTITUTIONALITY OF SLAVERY. iii 

that it is the most clear and luminous production that I have ever read on the subject. It 
begins without a lino of preface, and ends without a word of apology. It is a solid mass of 
the most brilliant argument, unbroken, as it seems to me, by a single flaw, and treads down 
as dust everything which has preceded it upon that subject. Let every friend of the slave 
read the work without delay. I believe it is destined to give a new phase to our struggle." 

RICHARD HILDRETH says of Part First: " No one can deny to the present work 
the merit of great ability and great learning. If anybody wishes to see this argument 
handled in a masterly manner, with great clearness and plainness, and an array of consti- 
tutional learning, which, in the hands of most lawyers, would have expanded into at least 
three royal octavos, we commend them to Mr. Spooner's modest pamphlet of one hundred 
and fifty pages." 

ELIHU BURRITT says: "It evinces a depth of legal erudition, which would do 
honor to the first jurist of the age." 

The True American, (Cortland County, N. Y.,) says: "It is an imperishable and 
triumphant work. A law argument that would add to the fame of the most famed jurist, 
living or dead." 

The Bangor Gazette s&ys: " It is indeed a masterly argument. No one, unprejudiced, 
who has supposed that that instrument (the constitution) contained guarantees of slavery, 
or who has had doubts upon the point, can rise from the perusal without feeling relieved 
from the supposition that our great national charter is one of slavery and not of free- 
dom. And no lawyer can read it without admiring, besides its other great excellences, 
the clearness of its style, and its logical precision." 

The Hampshire Herald, (Northampton) says: " It is worthy the most gifted intellect 
in the country " 

WILLIAM L. CHAPLIN says: "This effort of Mr. Spooner is a remarkable one in 
many respects. It is unrivalled in the simplicity, clearness, and force of style with which it 
is executed. The argument is original, steel-ribbed and triumphant. It bears down all 
opposition. Pettifogging, black-letter dullness, and pedantry, special pleading and dema- 
gogism, all retire before it. If every lawyer in the country could have it put into his hands , 
and be induced to study it, as he does his brief, it would alone overthrow slavery. There is 
moral force enough in it for that purpose." 

The Liberty Press, (Utica,) says: " The author labors to show, and does show, 
that slavery in this country is unconstitutional, and unsustained by law, either state or 
federal." 

The Granite Freeman says: " We wish every voter in the Union could have the op- 
portunitj' to read this magnificent argument. We should hear no more, after that, of the 
' compromises of the Constitution ' as an argument to close the lips and palsy the hands of 
those who abhor slavery, and labor for its removal." 

The Charter Oak says: " Of its rare merit as a controversial argument, it is super- 
fluous to speak. It may, in fact, be regarded as unanswerable, and we are persuaded that 
its general cii-culation would give a new aspect to the Anti-Slavery cause, by exploding the 
popular, but mistaken notion, that slavery is somehow entrenched behind the Consti- 
tution." 

The Liberty Gazette (Burlington, Vt.,) says: "This work cannot be too highly 
praised, or too extensively circulated. Its reasoning is conclusive, and no one can read it 
without being convinced that the constitution, instead of being the friend and protector of 
slavery, is a purely Anti-Slavery document." 

The Indiana Freeman s&ys: "Every Abohtionist should have this admir.ible work, 
and keep it in constant circulation among his neighbors." 



IV UNCONSTITUTIONALITY OF SLAVERY. 



SYNOPSIS 



Chap. T. Wkat is Law? (p. 5.) Nothing inconsistent with justice can be law. 
Kalfehood of the definition, that " Law is a rule of civil conduct, prescribed by the supreme 
power of a State." 

[Where the genuine trial by jury prevails, this principle can be carried out in practice.] 

Chap.it. Written Constitutions, (p. 15.) Admits, for the sake of the argument, that 
constitutions and statutes, inconsistent with justice, may be made law ; and insists only 
that our constitutions shall be interpreted by the established rules, by which all other legal 
instruments are interpreted; one of which rules is, that all words, that are susceptible of 
two meanings, one favorable to justice, and the other to injustice, shall be taken in the 
sense favorable to justice. 

Chap. III. The Colonial Charters, (p. 21.) Tliat these charters were the constitu- 
tional law of the Colonies up to the time of the Revolution ; that the provisions in them to 
the effect that their legislation should be "consonant to reason, and not repugnant or 
contrary, but so far as conveniently may be, agreeable to the laws, statutes, customs, and 
rights of this our kingdom of England,'" made it impossible that slavery could have any 
leg.al existence in the Colonies up to the time of the Revolution; and that the decision of 
the King's Bench, in Somersett's case, was as much applicable to the Colonies as to Eng- 
land. Note corrects Bancroft's statement, that England ever legalized the'slave trade. 

Chap. IV. Colonial Statutes, (p. 32.) Shows that the Colonial legislation, on the 
subject of slavery, failed to identify, with legal accuracy, the persons to be made slaves ; 
and, therefore, even if such legislation had been constitutional, would have failed to legal- 
ize slavery. That, consequently, there was no legal slavery in the country, up to the time 
of the Revolution. 

Chap. V. The Declaration of Independence, (p. 36.) By this the nation declares it 
to be " a self-evident truth," that all men are created free and equal. All "self-evident 
truths " are necessarily a part of the law of the land, unless expressly denied. The na- 
tion, as a nation, has never denied this self-evident truth, which it once asserted. This 
truth is, therefore, a part of the law of the land, and makes slavery illegal. 

Chap. VI. The State Constitutions of 1789. (p. 39.) None of the State constitutions 
in existence in 1789, established or authorized slavery. All of them, on their face, are free 
i-onstitutions. Shows that the words "free," and "freeman,'^ used in these constitutions, 
were used in the English or political sense, to designate native or naturalized persons, as 
distinguished from aliens, or persons of foreign birth not naturalized; and that they were, 
in no case, u.sed to designate a free person, as distinguished from a .slave. That the use of 
the words in this sense, in the State constitutions of 1789, as they had been previously used 
in the colonial charters, and colonial legislation, furnish an authoritative precedent, by 
which to fix tlie meaning of the words, "free persons,'''' in the Constitution of tlie United 
States, in the clause relative to representation and direct taxation. 

CuAP. VII. The Articles of Confederation, (p. 51), contain no recognition of slavery; 
but use the word "free " in the English or political sense, to signify the native and natural- 
ized citizens, as distinguished from aliens ; and thus furnishes a precedent, authorized by 
the whole nation, for giving tlie same meaning to the word "free " in the constitution. 

Chap. VIII. The Constitution of the United States, (p. 54. ) This chapter, in the 
first place, takes it for granted to have been shown that slavery had no legal existence up 
to the time of the adoption of the United States Constitution. It then says that that con- 



UNCONSTITUTIONALITY OF SLAVERY. V 

stitutioii certainly did not create or establish slavery as a new institution ; that the most 
that can be claimed, is that it recognized the legality of slavery so far as it then legally ex- 
isted under the State governments; but that, as slavery then had no legal existence, under 
the State governments, any intended recognition of it, by the Constitution of the United 
States, must necessarily have failed of effect. That consequently all " the people of the 
United States " were made " citizens of the United States " by tlie constitution ; and there- 
fore could never afterwards be made slaves by the State governments. 

Secondly, (p 56.) Shows, from its provisions, that the Constitution of the United States 
does not recognize slavery as a legal institution, but presumes all men to be free; denies 
the right of property in man ; and, of itself, makes it impossible for slavery to have a legal 
existence in any of the United States. Sliows, (p. 67,) that the clause relative to persons 
held to service or labor, has no reference to slaves ; that (p. 73) the term, "_/>ee persons,''^ in 
the clause relative to representation, is used in the political sense, to designate native and 
naturalized persons, as distinguished from per.^ons of foreign birth, not naturalized; that 
(p. 81) the clause relative to " migration and importation of persons," does not imply that 
the persons imported are slaves ; that it makes no discrimination as to the persons, 
whether African or European, to be imported; that it as much authorizes the importation 
of Englishmen, or Frenchmen, as slaves, as it does Africans; that it would, therefore, be a 
piratical constitution if the importation of persons implied that the persons to be imported 
were slaves; that (p. 87) the clause relative to the protection of " the States against domes- 
tic violence," does not imply the existence or legality of slavery, or protection against slave 
insurrections; that (p. 90) " We, the people of the United States," means all the people of 
the United States ; the constitution, therefore, made citizens of all the then people of the 
United States; that (p. 95) the " power to regulate commerce," is a power to regulate com- 
merce among all the people of the United States, and implies that all are free to carry on 
commerce; that (p. 96) the power to establish post offices, is a power to carry letters for all 
the people, and implies that all the people are free to send letters; that (p. 9G) the power to 
secure to authors and inventors their exclusive right to their writings and discoveries, implies 
that all capable of writings and discovei-ies, are capable of being the owners thereof ; that 
(p. 96) the power to raise armies, implies that Congress have power to accept volunteers, or 
hire soldiers by contract with them.selves, and that all are free to make such contracts ; that 
(p. 97) the power to arm and discipline the militia, implies that all are liable to be armed 
and disciplined; that the right to keep and bear arms, is a right of the whole people; that 
(p. 98) the prohibition upon any State law impairing the obligation of contracts, implies 
that all men have the right to enter into all contracts naturally obligatory; that (p. 99) all 
natural born citizens are eligible to the Presidency, to the Senate, and to the Ilouse of Rep- 
resentatives ; that (p. 102) the trial by jury implies that all perilous are free; that (p. 102) 
the Habeas Corpus denies the right of property in man; that (p. 105) the guaranty to every 
State of a republican form of government, i.s a guaranty against slaverj'. 

Chap. IX. The Intentions of the Convention, (p. 114.) Personal intentions of the 
framers of no legal consequence to fix the legal meaning of the constitution. The instru- 
ment must be interpreted as being the instrument of the whole people. 

Cn.^P. X. The Practice of the Government, (p. 123.) The practice of the govern- 
ment, under the constitution, has not altered the meaning of the constitution itself. The 
instrument means the same now, that it did before it was ratified, when it was first offered 
to the people for their adoption or rejection. 

Chap. XI. The Understanding of the People, (p. 124.) No legal proof, and not even 
.a matter of history, that the people, before they adopted the constitution, understood that 
it was to support slavery. Could never have been adopted, had they so understood it. 

Chap. XII. The State Constitutions of 1845. (p. 126.) Do not authorize slavery ; 
do not designate, nor authorize the State legislatures to di'signate, the persons to be made 
slaves. Have provisions repugnant to slavery. The treaties for the purchase of Louisi- 
1* 



VI UNCONSTITUTIONALITV OF SLAVERY. 

ana and Florida, imply that all the " inhabitants " were free, possessing the rights of lib- 
erty, property, and religion, and were to become citizens of the United States. 

Chap. XIII. The Children of Slaves are born Free. (p. 129.) Shows that, even if 
the persons held as slaves at the adoption of the Constitution, were to continue to be held 
as slaves, their children, born in the country, were nevertheless all to be free by virtue of 
natural birth iu the country. 



PART SECOND. 



Chap. XIV. 27;? Definition of Law. (p. 137.) The definition of law, given in chap- 
ter first, insisted on and defended. Additional authorities cited in note. 

Chap. XV. Ought Judges to resign their seats? (p. 147.) No; but to continue to 
hold them, and do justice. 

Chap. XVI. The Supreme power of a State, (p. 153.) Absurd results from the 
theory that the legislature represents " the supreme power of the State." 

Chap. XVII. Rules of Intfrpretation. {p. 155.) Examines the established rules of 
legal interpretation, and shows that they required the word " free," or the term '■ free 
PERSONS," iu the clause relative to representation, to be interpreted to mean, native and 
naturalized persons, as distinguished from immigrants not naturalized; and not to mean 
persons enjoying their personal liberty, as distinguished from slaves. 

Chap. XVIII. Servants counted as Units, (p. 237.) The provision that " those 
bound to service for a term of years," should be included among the " free persons," im- 
plies that there were to be no slaves. 

Chap. XIX. iSZai-e Representation, (p. 238.) Absurdity and injustice of it, a con- 
clusive reason against any interpretation authorizing it. 

Chap. XX. Wliy aliens are counted as three-fifths, (p. 242.) Not eeino full citizens, 
ought not to be counted as such. Ineijuality produced among the States by doing so. 

Chap. XXI. Why the words '■^Free Persons " were used. The VFOrd " free," had 
always been the technical word, both in this country and in England, for describing native 
and naturalized persons, as distinguished from aliens. The indefiniteness of the word 
" CITIZEN " made it an improper word to be used, where precision of meaning was required. 

Chap. XXII. "All other Pfrsons.'' (p. 257.) These words used to avoid the use of 
the unfriendly and inappropriate vford " aliens," and also to include " Indians not 

taxed." 

Chap. XXIII. Additional Arguments on. the word Fke^. (p. 265.) Showing that this 
word must be taken in the political sense, before mentioned, and not as distinguished from 
slaves. 

Chap. XXIV. Power of the General Government over Slavery, (p. 270.) Origin and 
necessity of the power to abolish slavery in the States. 

Appendix A. Fogitive Slaves, (p. 279.) Extended legal and historical argument on 
this subject. 

Appendix B. Suggestions to Abolitionists, (p. 290.) Abolitionists can abolLsh slavery 
legally, only by taking the ground that the United States Constitution authorizes the 
general government to abolish it. 



AN ESSAY 



ON THE 



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ESSAY ON THE TRIAL BY JURY. 



CONTENTS 



Pa 5?. 
Chap. I. The Right of Juriks to Jcdge of the Justice of 

Laws, ------- 5 

Section 1, - -.- - - . 5 

Section 2, -- - - - - -11 

Chap II. The Trial by Jury, as defined by Magna Carta, 20 
Stction 1. The History of Magna Carta, - - - 20 

Section 2. The Language of Magna Carta, - - 25 

Chap. III. Additional Proofs of the Kights and Duties of 

Jurors, ..-.-. 51 

f 

Section 1. Weakness of the Regal Authority, - - 51 

Section 2. The Ancient Common Law Juries were mere 

Courts of Conscience, ... - 6-3 

Section 3. The Oaths of Jurors, - - - - 85 

Section 4. The Right of Jurors to fix the Sentence, - 91 

Section 5. The Oaths of Judges, - - - . 98 

Section 6. The Coronation Oath, - - - 102 

Chap. IV. The Rights and Duties of Juries in Civil Suits, 110 

Chap. V. Objections .answered, ----- 12.3 

Chap. YI. Juries of the present day illegal, - - 142 

Chap. VII. Illegal Judges, ----- 157 

Chap. VIII. The Free Administration of Justice, - 172 

Chap. IX. The Criminal Intent, - - - - 178 

Chap. X. Moral Considerations for Jurors, - - 192 

Chap. XI. Authority of Magna Carta, - - - 192 

Chap. XII. Limitations imposed upon the Majority bv the 

Trial by Jury', ----- 206 

Appendix — Taxation, ------ 222 



AN ESSAY ON TUE TRIAL BY JURY. IX 

The theon' of this book is that the ancient and common-law juries, such 
as we are now constitutionally entitled to, were mere courts of conscience, 
who tried, and whose oaths required them to try, all causes, both civil and 
criminal, according to their own notions of justice, regardless of all legisla- 
tive enactments, and all judicial opinions, which did not correspond with 
their own sense of right. 

And inasmuch as it was necessary that the jurors should be drawn hj lot, 
or otherwise taken at random, from the whole body of male adults, without 
any choice, dictation, or interference, by the government, it was reasonably 
presumed that substantially all opinions, prevailing among the people, 
would be represented in the jury ; that, in other words, a jury would be, in 
fact, a fair epitome of " the country," or whole community, which it was de- 
signed to represent. 

And since the twelve, thus selected, could render no judgment, unless by 
an unanimous assent, it follows that no laws were intended to be enforced, 
except such as substantially the whole people were agreed in, as being just. 

From this statement, it will be seen tliat our modern idea, that the majority 
have the right arbitrarily to govern the minority, and to establish any thing 
they may please as law, without regard to justice, is wholly incompatible 
with the principles of the Trial by Jury. 



NOTICES. 

The following is from the pen of Richard IIildreth, Esq., the historian. 

"ESSAY ON THE TRIAL BY JURY.'' 
Messrs. Editors: — This remarkable book, by Lysander Spooner, will richly repay peru- 
sal on the part of all who feel the least interest in the theory of government, that is to .say, 
all the thinking men of the United States, and indeed of all the world over. The charming 
ease and lucidity of Mr. Spooner's style, — in which, among all the Writers of the Engli.*h 
language, he has very few competitors, — the close coherence of his ideas, and the sharp 
dexterity of his logic, give to his book, what we seldom find now-a-d.ays, the interest of a 
well-compacted drama, with all the Aristotelian unities complete, and a regular beginning, 
middle and end. Having begun to read it, we found it impossible to lay it down till we 
got to the end of it, though obliged to sit up long past midnight, and though we were 
already informed of the general t«nor of the argument, from having seen the greater part 
of the proof-sheets. The book indeed has this further resemblance to a poem of the first 
class, that it will not only bear re-perusal, but gain by it — which we take to be the great 
distinction between the true poem, whether in verse or prose, and the mere novel or ro- 
mance. There are, however, some citations and note", which may be skipped on the second 



X ESSAY ON THE TRIAL BY JURY. 

perusal, and indeed on the first, hy those inveterately given to tliat practice, as not essen- 
tial to the argument, only corroborative of it. But if any reader intends to take issue — as 
the lawyers say — with Mr. Spooner, he had better read the whole at least twice over. 

The trial by jury has enjoyed and enjoys a most lofty traditional reputation as " the 
palladium of English liberty." Looking at jury trial as it now actually exists, the judges 
dictating not only the conclusion in law, that is, the decision to which the jury is bound to 
come upon any such state of facts as they may consider to be proved, but having also the 
exclusive decision as to what evidence shall be admitted to prove these facts, and the in- 
structing of the jury what weight they ought to allow to this or that piece of evidence, and 
what conclusions the}' ought to draw from it; with all these assumptions of authority on 
the part of the judges, the jury seems to have become very much what the late Mr. Justice 
Story was accustomed, in private conversation, to describe it as being — a mere stalking- 
horse, from behind which the judge may shoot quietly and safely, deciding everything, at 
the same time that he escapes the responsibility, and in some cases, the odium, of doing .so. 

Such being the practical character of our modern juries, mere cloaks and shields of 
judicial dictation, it has come, among thinking men, to be a great puzzle how they ever got 
their immense reputation as a " palladium of liberty ;" and some writers have not scrupled 
to denounce the whole idea as a mere humbug. 

Mr. Spooner, however, has shown very conclusively, and by a skilful array of authori- 
ties that cannot be got over, that in its original institution, and during the whole time in 
which it got this reputation as the " palladium of liberty," the jury was a totally different 
thing from what it has become in these later times under the plastic hands of the judges, 
the juries having been originally sole judges of both law and fact, indeed possessing sub- 
stantially a veto on the execution of any such laws as they did not consider conformable 
to justice and the public good. 

All readers may not agree with Mr. Spooner's somewhat enthusiastic admiration of this 
•jury veto power ; but that it did exist, and that it was this which made the jury the " pal- 
ladium of English liberty," he has proved beyond the shadow of a doubt; and in so doing 
has shed a great deal of new light upon the gradual formation of what is known as the 
British constitution, the source from which so large a part of our American constitutions 
are derived. 

Nothing is more certain than that the great, indeed the sole value of the trial by jury 
is political. As a mere contrivance for deciding matters of fact — according to the common 
representation made of it by modern lawyers — it is clumsy, inconvenient, and liable to a 
variety of objections. In those countries on the continent of Europe, in which it has been 
introduced of late years, for the trial of criminal cases, it has greatly disappointed the 
expectations formed by those who had been accustomed to read of it in books as the " pal- 
ladium of liberty," and is generally esteemed a total failure. 

We are not entirely prepared to go with Mr. Spooner, for the complete re-establishment 
of the jury veto on the ancient model. But that it is absolutely essential to the liberties 
of the people to preserve to juries the right of deciding law as well as fact, in all criminal 
cases, we do not entertain the slightest doubt. And considering the recent and alarming 
strides, as well of legislative as judicial usurpation, — especially the fact recently announ- 
ced from the bench of the Federal Court of the United States for this circuit, that ALl the 
judges of the Supreme Court of the United States scout the idea of any right in a jury to 
judge of the law in any case whatsoever, — we think Mr. Spooner has done excellent service 
in calling attention, as he has so ably, to the ancient conservative jury veto. 

Mr. Spooner is a thorough-going Democrat, — as zealous for the rights of the people, 
and as fierce against judicial usurpation, as Jefferson himself. Indeed some of the lunges 
which he makes at their honors on the bench — as in the note on page 164 — have a hearty 
frankness about them highly refreshing to one who has been sickened and disgusted — as 
what hater of falsehood and cant has not been? — by the systematic routine flattery and 
servility of the bar towards the judges. But more consistent, more icomprehensive, and 
truer to liberty than Jefferson ever was, Mr. Spooner is equally hostile to the usurpations 
and tyranny of a domineering majority xmder the forms of legislation. And, indeed, in our 



ESSAY ON THE TRIAL BY JURY. XI 

American States, judicial usurpation is seldom very boldly ventured upon, except in tiie 
service of a tyrant majority, eager to trample under foot the constitutional and natural 
rights of the minority. The Conservatives, therefore, no less than the Demoerats, owe a 
debt of gratitude to Mr. Spooner. It is truth and justice in whose cause he is enlisted, not 
that of party. 

E. H. 

HON. STEPHEN ROYCE, formerly Chief Justice, and afterwards Governor, of Ver- 
mont, says: 

East Berkshire, Vermont, 
September 21, 18.57. 
G. W. Searle, Esq.: Sir, — You will please accept my thanks for the favor of Mr. 
Spooner's book upon " The Trial by Jury." I have derived much pleasure from a hasty 
peru.sal of it, and hope the author will persevere and produce the other works, of which he 
has given indications in this. Although I do not look to see his theories extensively carried 
out in practice, yet I think his labors must have effect for good. Investigations so decidedly 
able and searching, can scarcely fail to excite reflection and serious enquiry, — as well with 
honest legislators and statesmen, as among enlightened jurists. And the result may be, at 
least, a step taken towards restoring to suitors some of those common-law rights, of which, 
in the lapse of centuries, they have been gradually deprived. 

With high respect, your ob't serv't, 

STEPHEN ROYCE. 

GEORGE W. SEARLE, Esq., says: The general propcsition assumed and aimed to be 
sustained is, that "for more than six hundred years — that is, since Magna Carta in 1215 
— there has been no clearer principle of English or American constitutional law, than that, 
in criminal cases, it is not only the right and duty of juries to judge what are the facts, 
what is the law, and what was the moral intent of the accused ; but that it is also their 
. right, and their primary and paramount duty, to judge of the justice of the law, and to hold 
all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in 
violating, or resisting the execution of, such laws." It will be seen that this is a bold pro- 
position, and at first glance it may appear untenable ; but it is certainly a position not to be 
entirely appreciated by a glance. It must be confessed that it elevates the tribunal of the 
.Tury to the highest pinnacle of power, making them the judge of the judges, and giving 
them authority to sit in judgment upon the legislature itself. This position the author 
seeks to maintain in a very learned andingeniousargument of 224 pages, in the first instance 
from the general nature of the jury as the palladium of liberty, and a bulwark against the 
tyranny of authority — by the history, spirit, and language of Magna Carta — and by a variety 
of reasoning in detail. This head is followed bj' a general refutation of objections. 

It is not our purpose to enter at length upon any discus.non, either in support or refu- 
tation of the doctrines laid down by the author; for the former task we feel our incompe- 
tency, and for the discharge of the latter, that much more time would be requisite than we 
have at our command, if indeed any time would justify the undertaking. Whatever doubts 
there may be as to the author's opinions upon many subjects, we may say of his writings 
what Charles James Fox once said of a speech he was about to reply to in the House of 
Commons, to one who noticed his serious perturbation, " it is not so easy a matter to answer 
such an argument as that." # * * That the positions assumed are novel and heretical, 
judged in the light of prevailing adjudications, is quite true, but that for that reason they 
are any the less worthy of regard, is quite wide of the truth. To the thinking man we 
recommend it as food upon which he may feed and grow strong; and to the professional 
man, in an age of progressive jurisprudence, when the science of law, too long bound with 
an iron grasp to antiquated decisions and principles having nothing but their antiquity 
and their folly for their authority, is beginning to take its march by the side of modern 
science, we recommend its candid and impartial examination, assuring him that in it he will 
find the bold expression of manly truths, without fear or favor. 



XU ESSAY ON THE TRIAL BY JURY. 

WENDELL PHILLIPS, Esq., says of it: "Though I dissent from Mr. Spooner's 
main conclusion, I must confess this effort is marked with all his pre eminent ingenuity 
and ability. He has laid all history under contribution for light as to the origin and func- 
tions of juries ; and I am debtor to his diligence and research for much that was new to me. 
The original proyince of a jury has never before been fully investigated in any work acces- 
sible and intelligible to common readers. I am not aware that there has been any able and 
extended argument about it since Erskine's. 

The fullness, therefore, of historical illustration, which Mr. Spooner has given to those 
points, even, on which many of the profession would agree with him, makes the volume a 
valuable contribution to legal literature. 

Though he has not converted me to his views, yet I always read him with pleasure, and 
admire him for an opponent on one account — he states his questions so fairly, and faces 
the difficulties like a man. 

I quite agree that juries have the right, in both civil and criminal cases, to judge what 
the law is, i. e. what the Legislature have constitutionally enacted — but I cannot allow 
them the right to set aside statutes because they think them unjust." 

ROBERT E. APTHORP, Esq., says of it: If it cannot be answered, it must make 
a deep impression on the conscience, and thus on the jurisprudence, of the age in 
which we live. That it can be answered T greatly doubt; or rather I should say, I have no 
doubt about it. One thing is certain, — no tyro will venture to flesh his sword upon such 
a structure of logic and fact ; and should any worthy antagonist present himself in the 
lists, our generation and all future ones would owe Mr. Spooner a debt of gratitude for 
having forced attention, in high places, to a subject than which, I may safely say, none 
more intimately and vitally concerns this Republic. 

REV. EDWARD BEECIIER, D. D., says of it : Thus stated, it is plain that no point of 
history can exceed in dignity and importance that which Mr. Spooner has undertaken to 
discuss. 

The mode of his discussion is worthy of the gravity of the point at issue. It does not 
at all consist of rhetorical declamation, but is a sober, earnest, learned, and powerful argu- 
ment, based on copious citations from numerous and weighty legal and historical authorities, 
ancient and modern. 

ELIZUR WRIGHT says of it : " To me it seems not only very remarkable as a book, 
but as a discovery ; one which may be more useful to the world than new gold regions." 

HON. SAMUEL E. SEWALL says of it : " This is a work of deep research and power- 
ful argument. It ought to be in the hands not merely of every judge and every lawyer, 
but of every man who values liberty, and wishes to examine its sacred foundations." 

HON. JOSHUA R. GIDDINGS says of it : " It should be placed in the library of every 
lawyer, and of every reader of general literature." 



LIBRARY OF CONGRESS 




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